Hate speech legislation today

Society must outlaw harmful actions, rather than banning false beliefs.” So, impeccably, the Guardian.

Yet the furore around the Labour party takes place in total avoidance of this principle We see a rush to decisive disciplinary action to solve a problem which requires ongoing nuanced political discussion – precisely what the current hysteria is designed to crush.

The Labour Party antisemitism debacle is exposing the problem of establishing who has the knowledge and authority to decide when ‘hate speech’ has crossed the line as an essential and profoundly damaging challenge for liberal democracies. This challenge is evident whether one looks at the responses of leading figures in the Jewish community, Labour Party MPs and peers, or the BBC and the liberal press.

On July 9, The Guardian editorial under its byline, ‘Comment is free… but the facts are sacred’ published the following lucid statement of democratic principle under the title, Society must outlaw harmful actions, rather than banning false beliefs”.

“The distinction between speech and action is fundamental to a liberal society.

Freedom of speech means nothing if it is not also the freedom to be egregiously wrong. This distinction becomes especially important in an age of social media when everything that anyone has said online can be dredged up and examined, not just by the state, but by almost any private enemy before being used as grounds for denunciation. The law can compel behaviour, but it shouldn’t compel thought and should not often compel the expression of thought.”

The case here referred to a judgement by the court of appeal against Sheffield University for expelling from its courses in social work, a student who had uttered online condemnation of same-sex relations two years earlier.

What is odd about this unimpeachable statement is that it is made by the paper at the same time that it is up to its eyebrows covering the Labour Party antisemitism allegations – a hate speech legislation case which is in the process of unravelling in all directions. Yet The Guardian deftly picks its way through these allegations as if there was nothing of relevance for it from the above paragraph.

In this case more than any other, the inability for society to establish who has the knowledge and the authority to decide when ‘hate speech’ has crossed the line is becoming more and more evident by the day. Kenneth Stern, one of the two authors of the IHRA principles governing the new definition of anti-Semitism, long ago warned of its misuse and misapplication. There could be few better examples than this attempt to treat a profound political disagreement which has been dividing Jewish families for decades as if it were a matter for disciplinary procedures over religious hate speech, with groups set up to test Labour Party speech acts against a series of rhetorical tropes, and escalating hysteria when there is, as is inevitable, no rapid and clear conclusion to be drawn in more than a handful of cases.

What is noticeable, as in the Brexit polarisation, is the escalating hatred and certainty in inverse proportion to the existing evidence. The less anyone knows about what is really going on, the more who complain they don’t have the facts, the more sure we are that we have located the enemy and the keener we are for the maximum punishment. Expulsion is now to be immediate on the first sign of a trope, since no one can find a process that everyone can trust. It is no longer enough to work steadily through the existing backlog. Like Brexit, this has been going on long enough. Escalation demands that we look – now – into those closest to the leader of the Labour Party and the leader himself. For this is a disease that is out of control, and it must be stamped out, finished with. Nobody asks why Jeremy Corbyn should be able to quickly resolve an issue that has divided Jewish families for decades. And nobody wonders, at least out loud enough in the absent political debate, who this escalating hatred serves?

There are one or two important direct causes for escalation which are worth noting in this gathering debacle. From the start, the first was the inability to establish proper criteria for assessing where to draw the line on this form of religious hatred. It was already clear in the 2006 All–Party Inquiry into Antisemitism that the promoters of the new definition knew this was a problem. What they tried to do there was to locate the authority for this decision in the Jewish community itself, arguing that the MacPherson report had established this principle in racial and religious discrimination. The MacPherson Report, dealing with institutional racism in the Metropolitan police force, had argued that any complaint of racial discrimination from a member of a racial minority had to be taken seriously and thoroughly investigated by the police. This was very different from saying that the ultimate judgment rested with the beleaguered community – one source of the current escalation that is under way.

This confusion has been further exacerbated, however, by its melding with another emergent source of authority from the discourse of emotional authenticity. Here it seems that anyone who feels offended has a case that not only must be investigated, but is given the benefit of the doubt in the first instance in direct proportion to the intensity of the offence given. The BBC Panorama whistleblowers have somehow become caught up in the medicalization of victimhood which is itself seen as a vindication of their case. Depression, thoughts of suicide, and on the ‘other side’ having to deal with allegations when under treatment for cancer: all these symptoms begin to stand in for the real evidence in ways that can only escalate without leading to any truly relevant enlightenment. The other inevitable outcome of this initial confusion of authority with the assessments of the victimised minority, is that sooner or later we have to ask who ‘the Jewish community’ is. Jon Lansman cannot be right to be so sure, particularly, and again inevitably, as Jewish Voice for Labour enters the witch-hunt spotlight and is singled out for special opprobrium.

Let us return to The Guardian and that other source of escalation that creates far more heat than light – the role played by the mainstream media. Here is the Guardian offering on Sunday July 13. The whistleblowers handpicked by the BBC to make the most damning case possible regarding the Corbyn-led Labour Party have told the Observer that they will sue ‘Labour high command’ over ‘defamation’, having already broken their own non-disclosure agreements to bear witness to the wrongs done them as former party staffers hitherto. How is this latest development presented to us the readers?

The Observer quotes the prominent media lawyer who has been appointed on their behalf. Fair enough. They point out that he was very successful in establishing the truths of the profoundly degrading hacking scandal around the Millie Dowler case. A rather different type of case, but still. They state briefly that the Labour Party has “raised complaints” at the highest level of the BBC about the Panorama programme. They return to the allegations made by the whistleblowers and their justification in breaking their non-disclosure agreements that they were “speaking out in the public interest”, together with the depth of their personal sense of grievance. Four paragraphs on this are followed by a couple devoted to the Labour Party response to them and to the “deepening row” within Labour.

Then we turn to the concluding paragraphs. We have leading Jewish figures cited in an Observer letter on the same day describing the EHRC investigation, regardless of what its findings are, as “a taint” – presumably on the Labour Party – of “international, historic shame”.  Then we have “20 Labour MPs, all members of the Tribune Group” issuing a statement expressing their shock at report of  “the party’s handling of cases and how individual employees have been treated. ‘ We support former employees in speaking out and commend their bravery in doing so,’ the MPs say.” If these Labour MPs have no more evidence than the rest of us, how can they be so certain that this is an act of bravery and not an escalating act of revenge, given the considerable political encouragement amassing around the former staffers and the lack of serious investigation conducted hitherto into the nature of the disagreement, for example with current staffers, and not only with the “bosses” of Labour?

To this The Observer has the answer, at least rhetorically, because this of course is where the polls come in: “Today a poll reveals that a third of voters believe that Labour is now an antisemitic party. The YouGov poll, for the anti-racist Hope Not Hate campaign, found that 42% of voters believed antisemitism is a ‘genuine and serious issue’ in Labour.” Few would dispute that whatever else antisemitism in the Labour Party is or is not, it is a ‘genuine and serious’ issue. But the point is – would they be able to say anything more substantial than that?  This is trial by the media, again of this very peculiar kind in which the less we know about the facts, the more certain we are of who is to blame and how.

Meanwhile a group of Labour peers (two days later 60-strong signatories to an ad), presumably in a similar state of “shock” are threatening to resign en masse if “more decisive action to tackle antisemitism is not taken” and if the Labour Party is not more transparent about the party’s disciplinary processes. The first recommendation of the Labour peers sounds like code for a call for more premature expulsions. Whatever else it could be is not at all clear. The second seems self-defeating, since opening up the criteria, the debates around the criteria and the decisions stemming from both to a much wider public than those who have been appointed to take these decisions (who for their own part claim that they have speeded up the processes fourfold) – runs the danger of commencing exactly the kind of illuminating political debate which this disciplinarian approach was designed to crush in the first place. Whatever else it would do – and I for one would welcome this as a Labour Party member – it could not possibly render action to tackle antisemitism by the new definition “more decisive”, since it can only lead to a much wider debate around the nature of the Zionist state and all similar constructs, the politics of the Labour Party, and the use of law in hate speech legislation in liberal democracies, than the one which has been brutally quelled so far.

What remains to be done in this balanced article? Neil Kinnock is revived to announce that Labour antisemitism is indeed, for those of us who had not noticed – a ‘sickness’. Well, that really helps. Meanwhile, the leader of the western world and upholder of the authority of western values, merrily shells out racist tropes for all the world to hear. Unlike the UK Labour Party, with the help of the media, the unrepentant president can use hate speech to his electoral advantage. (One conclusion being urged on us by the conservative nationalists who now hold sway in both the US and the UK is that President Trump is however not a racist… Mayhem. Confusion. So what is hate speech legislation for?)


Rosemary Bechler is an editor of openDemocracy and a member of Jewish Voice for Labour. She writes here in a personal capacity.

Comments (3)

  • Sean O’DOnoghue says:

    Great article thanks….incisive. Thanks for taking the time

  • jay henderson says:

    Dear rosemary you mean well but what we need is a strong rebuttall of any allegations of antisemitism. I totally deny that there is any more A.S. in Labour than in the UK population! To be “nuanced” is a waste of time these people are liars, pure and simple and I have many reasons to say so. Those who are not liars are gullable fools who, to quote Herr Goebles, “are dull are sheep and BELIEVE WHAT THEY ARE TOLD”

  • Mark Francis says:

    There appears to be an assumption going about that anti-Semitism is like original sin – its deep in everyone ( including, it would seem “self-hating” Jews) and to deny being anti-Semitic is a sign that you are anti-Semitic. This is palpable nonsense. Being chucked out of Judaism several generations ago (for marrying a gentile) my family has been atheist ever since, so I don’t care who killed the Christian’s imaginary friend.
    My own difficulty is that I am if anything Judaeophilic and have to be careful not to overcompensate due to my anger at seeing the Jewish community being used as a catspaw for people with a specific agenda to take down Jeremy Corbyn and who do not think they can do it on policy issues.

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