Why the Policing of Hate is Dangerous
On The Left's Push for Authoritarianism
Luis Buñuel's My Last Sigh (1983) is an autobiography dedicated to the filmmaker's great loves and hates. Buñuel devotes entire sections of the book to his love of alcohol and smoking while other parts are consecrated in large part to hate—especially his hatred of the space between Gala Dalí’s front two teeth. To quote the eponymous heroine from Gilda (1946), “Hate is a very exciting emotion,” and hatred is not a feeling I particularly wish to see overseen or controlled by the government.
Currently, Scotland is in the throes of revising its hate crime bill which has attracted criticism from the left and the right. The problem, as usual in recent years, is that it’s hard to tell who is on the left or the right as those who claim progressive, leftist politics are today the ones making arguments to censor free speech and punish people for “wrong think.” Less than a generation ago these were political views found primarily on the far right.
Becky Kaufmann is a policy officer for the Scottish Trans Alliance, one of many organisations that support the Scottish bill which aims to simplify Scotland's existing hate crime laws into one piece of legislation offering additional protections from hatred based on age, sexual orientation, race, religion, disability or transgender identity. Claiming to have been the target of hate speech, Kaufman, a trans-identified person, recently told the BBC that certain views should be criminalised and individuals punished for expressing ideas that Kaufmann finds “offensive.” Kaufmann supports this bill which ostensibly sets out to defend protected groups, adding, “All laws are authoritarian, by definition.” The Scottish Police Federation, however, claims this bill has the potential “to paralyse freedom of speech in Scotland, while the Faculty of Advocates has raised concerns over the bill having “unintended consequences,” specifically because this law would criminalise speech made in one’s private home.
In other parts of the UK, debates around similar hate crime legislation are also taking place. In October 2020 the College of Policing modified the existing Hate Crime Operational Guidance with the Authorised Professional Practice Guidance on Hate Crime (APPGHC). This modification was undertaken in large part because of the criticism penned by Mr Justice Knowles in Miller v College of Policing whereby Knowles vituperates the original hate crime guidance which had been implemented by the Humberside Police. Orwell figures frequently into Knowles’ judgment, especially in reference to the police having told Harry Miller to “check [his] thinking” after Miller was investigated by the police over a poem that he posted on Twitter in 2019. Article 10 of the European Convention on Human Rights which protects freedom of expression also figures centrally in the judgment which vindicated Miller of any wrongdoing earlier this year.
Last Friday, Harry Miller, who has since formed Fair Cop, came under fire after tweeting a criticism of the College of Policing’s definition of recordable hate based in part on the guidance of the Crown Prosecution Service (CPS) through his #SayYesToHate hashtag. The College of Policing’s definition of hate includes “ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.” The guidance also goes into the “perception-based recording” of hate crimes which means that evidence of any of the aforementioned emotions is not a requirement for hate crime or a hate incident to be recorded:
[T]he perception of the victim is the defining factor in determining whether an incident is the incident, or in recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.
Yesterday, I spoke with Harry Miller, a former police officer, who told me what transpired since last Friday as some people initially warned him that he was “damaging” his brand by starting the #SayYesToHate hashtag. Miller defends his position asserting that he is interested in “winning the war” over the curtailment to the freedom of expression, adding “I’ve been on the phone this morning with several MPs who are writing about the hate crime bill and the problems it presents.” He continues:
According to the police definition of hate, we are all part of a “hate group”—so is the government. So are TERFs, Tories, non-mask wearers, white people, Brexiteers, people who don’t accept white privilege. You can find that everybody falls under the banner of “hate.” Under Stalinism, this is precisely what happened as the standard was set so high that nobody could meet it such that those in power could pick and choose who is and who is not valid. So, the only way to resist this is to roll with it.
Taking aim at three terms that the College of Policing uses in their policy, Miller tells me how animosity, unfriendliness and dislike are human emotions that should not be policed noting that, “The sensible definition of hate is a high degree of animosity which, unless checked, is likely to spill over into hostile action.” Miller elaborates how the policing human virtue is becoming the preserve of law and has no place therein: “Kindness and friendliness fall in the domain of priests and once we have a police force doing the job of the priesthood we will surely have an inquisition.” Miller qualifies that he is not prepared to do what is asked of him under the guise of friendliness, explaining, “The only way I can overturn this is to address their playing with the definition of hate. So, you might as well get the attention by doing what nobody expects by saying ‘yes’ to hate.”
While there are attempts to remove the “dwelling defence” in Scotland preventing people from being convicted of “hate speech” taking place in private homes, similar changes are proposed in England and Wales. The Law Commission, an independent body that reviews England and Wales’ law, argues that the “private dwelling” defence should be removed from the Public Order Act. The Hate Crime and Public Order Bill in Scotland is currently in Stage 1 while the Hate Crime Laws consultation launched in September 2020 by the Law Commission is still in the consultation phase. Both are contentious pieces of legislation that would criminalise any kind of language that might be perceived as stoking up prejudice to include private conversations as well as written work and public speech from theatre, to comedy, to journalism.
Around issues such as gender ideology, children would then risk exposing their parents to hate crime charges should they repeat any private conversations transgender identity at school or in the playground should the law change. Within the Scottish art world, there has been a steady backlash from the likes of Rowan Atkinson, Elaine C. Smith, Chris Brookmyre and Val McDermid who claim such legislation would have a “chilling effect” on public debate and freedom of expression. Meanwhile, the new National Hate Crime Guidance published last month are pitting evidence against emotion.
As much as it might be uncomfortable for some to have their notions of selfhood or political narratives unvalidated—even challenged—by the greater society, hate crime legislation and guidance call into question the role of the state. Should governments legislate and the police patrol any emotion that does not advocate for violence? Clearly not. Where the left has become the hornets’ nest for the most regressive and authoritarian ideologies since the pre-Enlightenment era, we must push back on these attempts to restrict language and thought.
Perhaps the 21st century will go down historically as the era of virtue-signalling, authoritarian control freaks who are so enamoured by their own sense of self-importance that they are compelled to promote all forms of disagreement as “hatred” such that they disappear all political opposition through legal fiat? The misuse of “hate speech” guidance and laws will dam our democratic freedoms all because some are intolerant to speech which they find “offensive.” Lord Justice Sedley, in his landmark ruling in the case of Redmond-Bate v Director of Public Prosecutions (1999), put it best: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”