J.K. Rowling is right to protest Scotland’s hate-speech laws
A new Scottish ban on offensive language is meant to protect vulnerable groups, but history shows that unfettered free speech is a powerful engine for equality.
Should J.K. Rowling face criminal charges for misgendering someone on social media? In March, transgender British TV personality India Willoughby reported the “Harry Potter” author to the police for posting that “India didn’t become a woman. India is cosplaying a misogynistic male fantasy of what a woman is.” Willoughby was about a month too early, though, since Scotland’s new Hate Crime and Public Order Act wouldn’t come into full force until April 1. On that day, Rowling posted a thread on X criticizing the law as being “wide open to abuse” and taunting Scottish authorities to arrest her. Prudently, the Scottish police have chosen not to investigate Rowling for her X thread, but there are still reasons to fear the act’s consequences for the climate of public debate in Scotland and beyond.
The act criminalizes a wide range of speech “stirring up hatred” based on certain characteristics, including “age, disability, race, religion or...perceived religious affiliation, sexual orientation, transgender identity and variations in sex characteristics.” A person commits an offense if they communicate material or behave in a manner “that a reasonable person would consider to be threatening or abusive,” with the intention of stirring up hatred based on protected characteristics. Convicted offenders could face up to seven years in prison.
Critics have lambasted the act for being overly vague and likely to instill a climate of fear and self-censorship. The Association of Scottish Police Superintendents predicted a huge increase in complaints, including people seeking to “score points” against opponents. This has already been the case, as Scottish police received around 3,800 complaints within 48 hours of the law’s enactment.
Those who share Rowling’s views have faced a harsh backlash for their statements on transgender rights, including threats and cancellation campaigns. They fear that the act will result in the state taking sides in debates around deeply polarizing issues of gender and sex, where calls for silencing particular viewpoints are all too frequent.
The U.S.-based Human Rights Campaign, a long-time LGBTQ advocacy group, demanded that the New York Times “stop consistently platforming anti-LGBTQ extremists” after it published a column by Pamela Paul titled “In Defense of J.K. Rowling.” Private and cultural institutions have often complied with this pressure. In 2020, Reddit banned a subreddit community of radical feminists opposed to trans-rights activism. The following year, University of Sussex philosophy professor Kathleen Stock felt compelled to resign after protests against her views on transgender issues.
Under the new Scottish law, however, Rowling and others worry that ongoing efforts to suppress the full range of views on gender in the public sphere will be enshrined into law. Instead of braving “cancellation” attempts, offenders could face police investigations.
Supporters refute these concerns by pointing to the fact that the law explicitly protects freedom of expression with its reference to the European Convention on Human Rights. That sounds reassuring, since the European Court of Human Rights insists that freedom of expression protects even statements that “shock, offend and disturb.” But the court has long exempted “hate speech” from protection, without properly defining this nebulous concept. The court has accepted definitions of punishable hate speech that include insults, ridicule, criticism of religion and denial of historical events. When it comes to LGBTQ rights, the court has held that offensive statements toward LGBTQ people based on traditional moral values can be punished as hate speech.
You’ve asked me several questions on this thread and accused me of avoiding answering, so here goes.
— J.K. Rowling (@jk_rowling) April 6, 2024
I believe a woman is a human being who belongs to the sex class that produces large gametes. It’s irrelevant whether or not her gametes have ever been fertilised, whether or not… pic.twitter.com/X6mbdJ0YVm
The law is part of a tsunami of new or expanded hate speech bans in open democracies. In a recent report analyzing the ongoing free speech recession across 22 open democracies, The Future of Free Speech, the think tank I lead, found that hate speech policies were the second most common form of free speech restrictions adopted between 2015 and 2022, after national security restrictions.
Many groups and activists who champion minority rights celebrate the growing trend toward limiting free speech as a sign of progress in the name of equality. But minorities should be deeply skeptical about restrictions on free speech.
Recent events demonstrate clearly that the negative impact of speech restrictions on minorities is not a hypothetical danger. At a 2017 Glasgow Pride parade, two LGBTQ Antifa activists were arrested and charged with “breaching the peace with homophobic aggravation” for holding a sign that read “These faggots fight fascists,” even though the intent was to reclaim an offensive word, not to cause offense.
Racial minorities in the U.K. have also been affected by speech bans purportedly enacted to protect members of such groups. A young Black man was arrested in his home, had his phone seized and was prosecuted for the “crime” of tweeting a raccoon emoji and using the word “coons” toward a black Conservative Party politician in an online exchange on police violence.
Strong free speech protections in Western democracies have been a blessing, not a curse, for minority rights. In addition to advocating for equal protection under the law without fear of reprisal, Western LGBTQ activists can openly express and celebrate gender identity and sexual orientation at pride events attended by and frequently sponsored by governments, corporations and the larger civil society.
Contrast this commitment to tolerance and equality within authoritarian regimes like Putin’s Russia, which recently banned the “international LGBT movement” as an “extremist organization.” In Africa, Ghana and Uganda have enacted extremely harsh laws that criminalize advocacy of LGBTQ rights with draconian punishments.
Changing hearts and minds through advocacy, protests and shining a light on discrimination -- not censorship and jailing homophobes -- have been the driving forces behind the acceptance and equality of LGBTQ people in democracies.
Far from being a weapon against minorities, strong free speech protections may well be the most powerful engine of human equality. As early as 1953, the U.S. Supreme Court ruled that a gay magazine could not be subject to obscenity laws under the First Amendment. A 1985 Supreme Court ruling affirmed that a state law punishing public educators who engaged in “public homosexual conduct” violated their rights to advocate for changes in LGBTQ-related policies. Last summer, a Trump-appointed federal judge struck down a Tennessee law banning drag performances.
Recently, states and school boards across the country have banned books containing LGBTQ characters and representation. But in January, the Fifth Circuit, the most conservative federal appeals court in the country, put free speech ideals above politics, ruling that a Texas law aimed at removing these types of books from the curriculum violated the First Amendment.
The U.S. approach to upholding free speech as a principle of open democracy means that even homophobic bigots have a right to free speech. Still, it provides a better path for promoting tolerance, without the negative consequences of overly broad laws that seek to drive certain viewpoints from the public sphere and frequently end up targeting minorities.
As the civil rights activist and first Black Supreme Court Justice Thurgood Marshall wrote, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Marshall was not a fan of bigotry, but he understood better than most that free speech and equality go hand in hand in open and diverse societies.
Jacob Mchangama is the executive director of The Future of Free Speech, a research professor at Vanderbilt University and a senior fellow at the Foundation for Individual Rights and Expression. He is the author of ” Free Speech: A History From Socrates to Social Media .”
The Wall Street Journal
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