Britain needs more gay and religious free speech. Change the law now

Intended to protect us from harassment, the Public Order Act gives the police a free pass for harassing ordinary people. Section 5 of the Public Order Act is criticised by free speech campaigners. I think LGBT Catholics should be joining the campaign too.

Some daft things have happened under this bit of law.

  • A student was arrested under section 5 for making a tasteless joke to a mounted policeman: “Excuse me, do you realise your horse is gay?
  • 19-year-old Kyle Little, was charged and convicted – though later cleared on appeal – for delivering what was described as a “daft little growl” and a ‘woof’ at two police labradors.
  •  A 15-year-old was summonsed to court for holding up a sign outside the Church of Scientology’s central London headquarters saying: “Scientology is not a religion. It is a dangerous cult“?
  • Gay rights campaigner Peter Tatchell, was arrested and charged for shouting slogans and displaying placards condemning the persecution and execution of lesbian, gay, bisexual and transsexual people by Islamic governments, during a protest at a Hizb ut-Tahrir rally.
  • An evangelical Christian preacher was convicted and fined for holding up a home-made sign that, beside the motto “Jesus is Lord”, proclaimed: “Stop immorality, stop homosexuality, stop lesbianism.”

protest against homophobic Hizb ut-Tahrir Peter Tatchell protests against the clerical fascism of Hizb ut-Tahrir

Love Muslims, loath religious tyranny at a free speech rally

free speech rally

We might say ‘serve you right’ for the tasteless ‘gay’ police horse joke, and to the evangelical Christian speaker for being homophobic – I’ve shouted at a few of those, and earned warm applause – but you have to take the rough with the smooth, and if we want the freedom to protest homophobic persecutions and executions in Muslim countries, and to be able to abuse homophobic street preachers without risking being arrested and held in a police station and having to appear in court, we do need the law changed.

All these are real cases of British police abusing a law that is so loosely worded that it invites police misunderstandings, over-use and law abuse.

Reform section 5; Feel free to insult me

Odd Coalition – LGBT people and Christian fundamentalists

That is why a campaign to reform section 5 was recently launched by a decidedly odd coalition of gay rights activists, evangelical Christians, atheists and politicians of all kinds. But if we want a transparent, secure platform for freedom of expression in Britain, we need to go further.

Section 5 of the 1986 Public Order Act says a person “is guilty of an offence if he

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.

No evidence is needed of any intention to cause harassment, alarm or distress.

What’s wrong with it? ‘likely to‘ not ‘intended to’ alarm, harass, distress

There are two things wrong with this catch-all wording. First, section 4 of the same act, which is Britain’s law against incitement to hatred on grounds of sexual orientation or religion, always requires someone to ‘intend’ to cause someone harassment, alarm, or distress, but section 5 does not require any evidence of an intention to cause harassment, alarm or distress.

So, under section 5 is really easy for the police to over-react – all the police think about is: was it “likely to”. Who decides what is “likely to” cause harassment, alarm or distress? On the street, the police do. And as the cases above show, they sometimes over-react. The police sense of humour failures: the butch policeman upset at being told his horse was ‘gay’, and the police dog-handler annoyed his precious police pooches were ‘woofed’ at.

Yes, the Crown Prosecution Service may then choose not to prosecute, or the court may throw the case out, but the 15-year-old making an entirely reasonable point about Scientology being a cult, and the student who made the bad joke about a ‘gay’ police horse, meanwhile have suffered unwarranted alarm and distress.

A law intended to prevent harassment, has become a police tool for harassing ordinary people speaking their minds.

free speech justice - the police are charged for violating protesters rights“Insulting”

The second thing wrong with the law is the word “insulting”. The government says it won’t remove it from section 5 partly because then the courts would then have the ‘difficult job’ of telling the difference between merely ‘insulting’ words and behaviour, and things that are ‘abusive’ or ‘threatening’.


In a legal opinion written last year, Lord (Ken) Macdonald, the former director of public prosecutions, comprehensively demolishes this objection. It is perfectly possible to distinguish between the meanings of words; that is what judges do all the time; and “insulting” is a word too far. In a free society, we should be free (though not obliged) to insult each other, but not to threaten or abuse.

We need clear, liberal, consistent free speech laws

To make this country’s free speech laws clear, liberal and consistent, we should not only remove the word “insulting” from section 5:

  • We should scrap section 5 completely.
  • We should also put back the requirement of proving bad intention (which was there until 1976) to the wording on incitement to racial hatred, to make it the same as the law on incitement to hatred on grounds of religion, or sexual orientation.

A mature, multicultural country must have free speech laws that consistently require that, whatever the human difference at issue, the harassment, alarm or distress should be both intended and likely.

This is about freedom. And it is about what it means to be British.


Join the Campaign: Reform section 5 – feel free to insult me!

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4 comments for “Britain needs more gay and religious free speech. Change the law now

  1. Advocatus Diaboli
    June 12, 2012 at 6:54 pm

    Well, despite our often very different views and sometimes touchy reactions to each other, it is absolutely impossible for me not to respect someone who values consistency and truly equal application of principle regardless of the outcome. 

    I am quite surprised  to hear this coming from a gay activist. In the US, most activist LGBT’s are guilty of gross tribalism, and do not give a crap about other people’s rights to free expression if it “offends them” – only “gays” are worthy of protection against unfriendly speech. I have a lot of respect for you for seeing the need for such a major revision in your country’s free speech laws. 

    I am not sure that I particularly care for the attitude of “we should allow them to say what they want only so that we can say what we want”; personally I prefer a less self-centered view of “the are a human, or at least a citizen, and therefore they are guaranteed this right, and it is wrong for me to take it away from them just because I do not like what they say”. But, I cannot really be that picky, the means are less important than the ends: guaranteed liberal free-speech.

    To want to ‘protect’ people from nastiness is entirely natural and seems like a “good”, but few people realize that the amount of protection you have is inversely proportional to the amount of freedom you have. You literally have to be self-sufficient and have a tough skin to be truly free, otherwise you will need to be protected and provided for by the government (which requires giving them ever more of your freedom). 

    I forgot who exactly, but an early american patriot once said “those who give up a little bit of freedom for a little bit of safety/protection will eventually loose both and deserve neither”. Also, one of the most powerful american revolutionary slogans was “Give me liberty or give me death”; a sentiment that means I would literally rather die than live without the freedom to do and say as I please. 

    There was a case in canada not too long ago where a man was arrested, tried, and convicted for “speaking against homosexuality” – and by “speaking” I mean he read the 4 or so ‘clobber passages’ from the bible and literally said nothing else. In other words, you can go to jail in canada for reading passages from the bible out-loud. In one of the nordic countries, I heard that not only is “harmful speech” against homosexuals illegal, but it is actually a formal part of their constitution – so, in that country, gays are treated as superior to the general population, because the constitution does not forbid negative speech against anyone else (not unlike how ‘back in the day’ it was illegal to criticism the king or even anticipate his death). As a homosexual man, I am outraged by the case in canada and the preferential treatment of gays in that nordic country. the desire to protect lgbts from unpleasant rhetoric shows that someone’s heart is in the right place, but protecting them from unpleasant speech at the expense of other people’s freedom must be avoided entirely. Your happiness is not more important than other people’s freedom.

    It is short-sighted to restrict the freedom of expression of others simply because we find it offensive, and is precisely the type of thing that should be included in the mandatory education of all those who desire to participate in the government. 

    • Chris Morley
      June 13, 2012 at 1:10 pm

      Thank you AD, for this respect and appreciation. I suspect the debate in the US between gay rights advocates and religious / conservative fundamentalists has become so polarised that perhaps there is no middle ground left for people to respect the right of the other side to free speech. What do you think?

      Now a reality check. A while back I wondered if you sometimes bull-shitted and suggested you might be wise to check the truth of what you sometimes say first. It amused you. I think you do need to check what you hear or remember.

      Are you sure the ‘Canadian’ arrest for reading the Bible wasn’t actually in the USA? According to reports it was on 2 February in California:

      There was a Canadian proposal to pass a law in 2002 that might have banned anti-gay speeches, but I couldn’t find anything else to back up your claim; it doesn’t appear to have made it into law

      Here’s a long Catholic whine about numerous cases restricting ‘religious freedom in Canada’ following gay campaigners’ actions, but there is not a single example of public bible reading being banned in Canada.

      I think you have misheard or are peddling an urban myth.

      I similarly seriously doubt any truth at all lies in what ‘you heard’ of a Nordic country’s constitution banning anti-gay speech. It doesn’t sound plausible from what I know of Nordic countries.
      The Nordic countries are Sweden, Norway, Finland and Denmark and out in the mid northern Atlantic, Iceland. I searched google with their names, ‘constitution’ and ‘anti-gay hate speech’ and found zilch that would substantiate this strange claim. 

      If you had checked, your blood pressure would not have soared and you would not have become ‘outraged’ needlessly against ‘the preferential treatment of gays in that nordic country’.

      • Advocatus Diaboli
        June 13, 2012 at 9:48 pm

        I will try to find the sources that I got the information from. I must say however, that that principle of what those two examples was the main point and less about drawing attention to the actual events. I will check and get back to you though.

  2. June 12, 2012 at 11:57 pm

    I agree. All rights carry with them limits and corresponding responsibilities, so the the right to free speech is not unlimited – but the limits need to be much wider than in the present law.

    When Boris Johnson intervened to ban the infamous bus ad which he deemed “offensive” to gays, I was concerned that this is not a good enough reason to prohibit anything: if we had a right to be protected from anything that might “offend”, a major part of the LGBT books, magazines, art, film TV and drama that has emerged in the past half century would have continued to be prohibited, because it caused “offence” to sanctimonious prigs.

    A far sounder response to that which offends or misleads, is to reply with words – not prosecutions.    

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