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A Golden Opportunity to End Hate.

A Golden Opportunity

2008 European Union Decision on Hate Speech and Xenophobia
The Amending of the Criminal Justice Act of the United Kingdom

Beware of The Jabberwocky

                “Silence”, the queen yelled. “Off with her head!” she sentenced Alice. The freedom to say unpopular and shocking things has been a part of Western canon and culture, and the concept of government censorship so vilified and warned,  one must ask the question of how Germany’s “nie wieder” approach to hate-speech become an European Union demand of its twenty-seven member countries?  Can Atlanticist states such as the United Kingdom manage to sell this continental-style secession of freedom to its citizens? What is the cost of freedom of speech? If hate had doomed Europe to a Clash of Civilizations, was this their golden opportunity to change society for the better, and stop war?

Continental Right

            From knights’ honor, and courtly behavior, to Napoleonic Code, Europe itself is constantly refining the value of a person’s life by what a good individual deeds. Continental law has given empires the right to conquer the world, queens the ability to colonize new frontiers, and with the drafting of Germany’s post-WWII Grundgesetz, the power to better itself by legislating a better society for its citizens. Rather than the acquisition of colonies, today’s civil laws attempt to criminalize hate speech to better Germany and repress patterns of hate that led to the holocaust. Today, this government policy of bettering has spread to the European Union most prominently through German Philosophy derived from Immanuel Kant’s metaphysical “looking glass” approach to hate speech:
 ‘Freedom to speak or write can be taken from us by a superior power, but never the freedom to think!’  - Immanuel Kant, Critique of Practical Reason
Kant argued in favor of “innocuous” speech generally, though he was always careful to disclose the need to control and restrict this privilege for some (clergy, officials). More importantly the Kantian “interpretation of human dignity” (speech should not infringe upon others’ freedoms,) (Haupt* 2005) would not only find its way into German law, but eventually spread to the entire European Union.

E.U. Legislation on Hate Speech: Framework Decision 2008/913/JHA

On June 12, 2008 Framework Decision 2008/913/JHA came into force by the European Union, and by that action, it would be necessary for member states to come into compliance with it in under two years (11/28/2010). Effectively, the decision consisted of a series of laws that prevented racist or xenophobia behavior within the European Union territory. The decision outlawed certain forms of speech or action defined as hatred towards persons of a particular race, color, descent, belief, nationality, or ethnic origin. In addition, written material such as pamphlets or pictures, which similarly perpetuated hate, was outlawed. Furthermore, the decision banned denying crimes against humanity, such as holocaust denying, or stating that the Armenian Genocide did not happen. The punishment for an individual who is in violation of this decision would be liable to serve one-to-three years in prison as determined by the member state. In addition a violator could lose government benefits, lose business licenses, be given a criminal record, or even have his or her assets, or business assets liquidated.  (Union 2008) With the passing of this decision, the question now became how to define freedom of speech, a long held human right also held by the European Union, with this new outlook on civility.

Yet those who opposed this decision, like Elisabeth Sabaditsch-Wolff, of the International Free Press Society, equated such “intrusions” of liberty with the former Soviet Union: “Today, in 21st century Western Europe, our right to free speech is being shut down quietly and systematically with an effectiveness that the commissars in the old Soviet Union could only dream of.” (Sabaditsch-Wolff 11) What appeared as insidious to some was seen as a misunderstanding by the Council of Europe who created a pamphlet in 2009, entitled the Manual on Hate Speech. It described a perspective in which thought, a component of freedom of speech, was now separate from external expression. In essence, while each individual has the right to freedom of thought, even in hate, this internal freedom is different than freedom of expression of such beliefs and words. (Weber 2009) In other words, with great freedom, comes great responsibility and the lack of it is now a crime.

Of course it’s easy to jump to absolutisms, as Wolff attempted to. It’s difficult to ask the question, if this decision might actually provide greater freedoms by limiting some, when we’ve all been threatened with Orwell’s 1984 thought-crimes, and cringe in expectation of Godwin’s law. Without jumping to the worst possible scenario, is it possible that the rationale behind such laws can win out Europe’s cultured love affair with freedom of speech?


Migration and Xenophobia in the European Union

The question is why now? We know that anti-immigration sentiment in mainland Europe served as the primary catalyst behind the change, followed by the rising tensions against Muslim-Europeans in the wake of September 11th.  The decision served to unify diversity, and to prevent polarization of hate. ‘In the Third Annual Report on Migration and Integration, published 2007, the European Union emphasized the point that the “…integration of third-country nationals is a process of mutual accommodation by both the host societies and the immigrants and an essential factor in realizing the full benefits of immigration.” ‘ (Thomas 2009) At the center of it all was French President Nicolas Sarkozy, who in 2007 was keen on genetically testing French citizens to prove their legal status. Around the same time, several publication were questioning the European Union’s ability to address these issues and had several people calling the Universal Declaration of Rights a “glaring failure” (Thomas 2009). The unity of the European Union, and its trade partners in Africa were now in question. New quotas for expulsion of immigrants in France evoked memories for some, of the 1942 rafle du Vel d’Hiv, in which French citizens were deported by their own government to Nazi camps. (Thomas 2009) To make matters worse, France was one of several countries refusing to ratify the Lisbon treaty.  France’s paranoia was not completely without merit, as it found itself ridiculed by the United States and United Kingdom for being the NATO member in opposition of military intervention in Iraq. France feared that the alignment of Europe with American causes might bring war to French soil. France viewed America’s declaration of war, without their approval, as a breach of the European unity (and international unity). Anglo-American dissent fell upon French President Jacques Chirac, who was the target of “various American and British commenters.” (Jacque Chirac n.d.) Chirac fell into unpopularity as the result of scandals in his second term, despite vindication in refraining from war when no weapons of mass destruction were found in Iraq. However, Chirac’s nationalistic policies proved to be popular with his successor, Nicolas Sarkozy, and perpetuated resentment towards the rest of Europe. Validating France’s policies were the London bombings of July 2005 which led to France having to choose between protecting itself against terrorism, or choosing not to appear xenophobic and hateful towards Islamic immigrants.

Proof of France’s disfavoring was written into the decision as it “directly refers to the crimes of genocide committed against the Jews during World War II, and mandates that speech acts which deny, minimize or trivialize the Holocaust - crimes defined by the Tribunal of Nüremberg  article 6 of the Charter of the International Military Tribunal, London Agreement of 1945  - be criminalized and punished.” (Burcu Gültekin Punsmann 2011) This subsequently led to France passing a law which had no criminal implication, but stated that they recognize the genocide of 1915, yet this was a completely unnecessary action as the 1990 Gayssot Act had already illegalized diminishing crimes against humanity.

Europe’s new reaction to hate served to thwart off national identities which embraced ethnocentrism, or even entitlement. Carefully, the decision was drafted in a manner that would lead to its ratification, despite the objections that proved to be problematic in previous U.N. hate speech legislations. (CERD and ICCPR) (Mchangama 2010) France (and other countries) could do little to oppose the directive without appearing prejudiced, and was successfully capitulated back into a willing member of the European Union despite conservatives. Bruno Gollinisch, a far right French politician who ran on sovereignty and tradition, threatened to vote against it and said:

“Why is such a text relevant or appropriate at this time? At a time when Europe’s borders have disappeared, causing an explosion of illegal immigration and cross-border criminality, is it not more urgent to ensure the security of the European people in their own territory than to worry about penalizing expressions that are allegedly racist?” (Kratsa-Tsagaropoulou 2007)


The Argument Against.

Like France, several other countries (including the United Kingdom) had objections to the decision. Most of these countries were obsessed with their physical boundaries, immigration and even a bit of Euro-skepticism. They were inclined to denounce hate speech but reluctant to join any regional or global effort that would limit their sovereignty. The potential future sovereignty of a nation is directly in conflict with its participation within the European Union. (Bernd Baumgartl 1995). This Union, a community formed under the Treaty of Rome which “made no specific commitment” on social cohesion but did, in the preamble, cryptically bind member to “’reducing the differences’” (Bache, George and Bulmer 2011, 423) managed to successful pass the decision despite these complications.

This decision is the sum effect of differences on immigration and national identity, and the European Union’s attempt at maintaining unity in response to state’s aversion to loss of some sovereignty. It sets a precedent that human rights, protected by the European Union, are more important than state’s citizen’s rights, and its national sovereignty. Indeed the climate within the European Union suggests that it is these issues, “born from a strong sense of nationalism [that] is often blamed for Europe’s infinity for war and conflict”. (Tiersky and Jones 2011, 394) Without a “pan-European identity”, allowing free movement where nationalities can meld, there can be no European market only “war and conflict”.

Similar to previous unionizations of trade, monetary issues, and later security, this latest endeavor is now expanding the social cohesion of the Union, and its ability to create a homogenized and functional bond between the many members and their various different cultures. The goal of which isn’t entirely without cause, since the Lisbon European Council (March 2000) alludes to these steps towards social cohesion, as a result of “becoming ‘the most competitive and dynamic knowledge-based economy in the world’” (Fitoussi 2005, 177) In essence by banning hate-speech, and xenophobia, the European Union  hopes to create a minimal standard of cooperation between work and private life as to foster “secure incomes”, and promote social integration. This “European Social Agenda – approved in December 2000 at the Nice European Council” (Fitoussi 2005, 178) ultimately reduces poverty, improves equality, and creates a more valuable human capital which continues to benefit not only the individual citizens involved by improving their lives, but also by improving the economy of the union they are a part of.

As with trade, unionization of physical and social borders juxtaposes a certain amount of hypocrisy that is often over-shadowed by the  louder declarations of human rights. The idea that an inclusive union exists among member states, but excludes others (thus forming a border) is questionable at best. Do these “human rights” only exist within the realm of the European Union? Ironically a citizen residing outside of the European Union may not only be denied freedom of movement into (or work in) the European Union, but be the victim of xenophobia, merely because there exists a boarder to the Union. Ultimately, xenophobia, or dislike of foreigners, is manufactured by the Union’s own attempt to eradicate it. Indeed, Jus Soli (“right of soil”) still creates tiers of acceptable xenophobia as states apply to memberships within the European Union (Tiersky and Jones 2011, 392). 

Preparing for the worse

This Union however is much more diverse than even parallel multi-state unions (such as the United States of America). A single social reformatting, or Social Darwinism approach would likely result in failing to meet the “needs of citizens who live so [far]” away from each other, and “who face completely different problems”. (Fitoussi 2005, 179) So instead, what was created were “common agreed objectives” or targets, which each member state would in their own way, attempt to meet. These were called National Action Plans, and they were to be implemented against a ‘knowledge-based’ database of statistics and information that would, through indicators, allow the individual state to implement, and meet these desirable thresholds.

The state of Europe today, is an awareness unlike ever before in history. While xenophobia and hate speech persist in Europe, there is now a conscience effort to record, acknowledge and even defend against these once easily overlooked crimes. The Fundamental Rights Agency, established in 2007 (founded under regulation 168/2007), is charged with collecting and analyzing data from racism, xenophobia, LGBT issues, and religious hate crime. It serves as a conduit between “key stakeholders” and “policy makers”. It’s capable of advising European Union member states on policy implementation, as well as request of a European Union institution in matters of grave urgency (European Union for Fundamental Rights Agency 2011, 1). It was shortly after the agency was manifested into service that it released its report, called Report on Racism and Xenophobia in Member States of the European Union, and which would ultimately lead to the 2008 European Union decision by the same name. The report was stark, and painted a picture that despite efforts to publicize and educate member states, told of a continued atmosphere of under-compensation to victims, and a lack of implementation to combat these crimes. Despite the Union’s efforts, crimes persisted, and response to them by member states continued in their former minimizing attitude. The following admission by interim director Beate Winkler in her forward would be enough to send shockwaves through a post-September 11th Europe.

“In around half of the Member States, even with laws and procedures in place, there were no indications of any sanctions being applied.” (Fundamental Rights Agency 2007, 4)

The findings were devastating as curriculum vitaes were sent out in Sweden, France, Slovakia, and Hungary to gauge the hiring response by using stereotypically Arabic sounding names verses traditional alternatives:

“In Sweden it showed that having an Arabic-sounding name significantly reduced an applicant’s chances of finding work, and another study showed that changing to a Swedish name improved them.” (Fundamental Rights Agency 2007, 9)

With regards to housing discrimination, the Fundamental Rights Agency described the situation in Roma as a “vicious circle of exclusion and segregation (p11)”. It suggested that member states often blame the gap between education differences of population groups on “individual’s deficiencies” (p12) (lack of language or understanding of national culture) rather than a failure in the education system.

It became even more maddening when it came to violent racism and crime. The report states that as early as 2006, five member states reported no data when it came to these crimes. Ten had “limited” data, and only two (United Kingdom and Finland) had comprehensive data collection. It was clear that whatever obvious injustices were occurring, very few were being taken seriously, leaving one to wonder how far the silence may have censored the misdeeds of the member states.

To make it worse, eleven of the largest states in the European Union reported upward trends (including Germany, France and the United Kingdom). This is despite the Union’s public declaration that 2007 (named Equal Opportunities for All), and 2008 (Intercultural Dialogue) would be the years they had designated to condemn “in the most absolute terms all manifestations of racism and xenophobia.” (p15)  The conclusions of this report demanded that the draft of the framework decision on racism and xenophobia be adopted, and that member states take a criminal approach to those who intentionally conduct themselves in a manner which incites:

Violence or hate towards a group of people, or a person belonging to a group, defined on the basis of race, colour, descent, religion or belief, national or ethnic origin, as well as the public condoning, denial or gross trivialisation of crimes against humanity and war crimes.” (p148)

For the first time, Europe looked in the mirror and viewed itself for what it really was. In the weeks and month following, it collectively chose to fight this perceived threat to its unity by passing the decision on xenophobia and hate. The time was right in Brussels, but could member states manage a similar collective will to seize the day?

United Kingdom

“All that matters is what we do for each other.” 
Lewis Carroll

Continental Tradition & History Of Freedom of Speech in the United Kingdom

                In 1601 the Golden Speech, (as it would later be known,) by Queen Elizabeth-I in her final Parliament set the standards for the value of words. The speech, so loved, that it was later said that the “speech ought to be set in letters of gold'. (Speech’ 2005) Elizabeth-I was also one of the key figureheads of modern continental tradition, that government is given the power to “change society”. (Butty and Fleiner 2005) In Elizabeth-I’s case, she conquered the new world while simultaneously censoring Shakespeare. In a similar manner, royal colonizers, turned revolutionaries decided “individuals entering into a society, must give up a share of liberty to preserve the rest.” (Washington 1787)

Britain has always been an innovator of civility. Consider Beowulf who Thomas L Wymer and Erin F Labbie, describe as a story of “civilized rage” (Labbie and Wymer 2004) and where we begin the formation of civil society. As religious blasphemy laws are repealed that banned movies such as the Life of Brian, and outmoded norms on acceptable behavior are replaced with more encompassing laws that not only protect the church from hate, but prevent it from being the sole provider of it, new dilemmas arise. British philosopher John Stewart Mill “argued that free speech does not entitle us to perform speech acts that harm others, concluding that there is no right to defame others, or to shout "fire!" in a crowded theatre (causing panic, and perhaps deaths).” (O'Neill 2006)

Civic Republicanism, which should allow enlightened individuals to navigate society by clearly separating “the private and public sphere”, (Lister 2007) and with it intellectual morality from religious values, appears to have failed to turn us into self-governing/directed citizens, leaving us more under the category of “slavish and dependent human beasts fit only for life under despotic governments.” (Sleeper 2010) 

United Kingdom: Amending the Criminal Justice and Immigration Act

            Months prior, and in anticipation of the European Union’s 2008 Framework Decision on Xenophobia and Hate Speech, the United Kingdom quickly amended the Criminal Justice Act of 2003 to come into compliance with it. This change occurred buried in legislation which included laws against child pornography, nuclear terrorism, and murder.  With such spectacle legislation shadowing Section 74 and Schedule 16, Parliament managed to pass revisions to the public code that redefined freedom of speech and condemned hate.

               No doubt, it was a carefully choreographed move since most “British do not have a ‘gut instinct’ in favor of European integration, and they would likely see this law as a secession of not only national sovereignty, but personal sovereignty as well.  Indeed “there can be a tendency for Britain[…] to stick to moral absolutes and points of principle”, making freedom of speech an all or nothing right without compromise. (Koutrakou and Emerson 2000, 28) Indeed, the fallout afterwards was a media blitz which continuously prompted members of parliament to minimize the legislation as a “revision” of blasphemy laws, and reminded the public that Britain has always had a “negative right” to freedom of speech. (Freedom in all that which is not prohibited by law.) (Fernandes 2003)  Indeed those blasphemy laws were repealed by this same act.

The Public Response

During the initial implementation period in the United Kingdom you could find the constant civilian absolutism being combated by a government seeking a compromise. By 2009, one was able to witness the application of this law by calm and collected police constables outside of pubs in the United Kingdom, as drunken young men and women would exit using racial slurs towards fellow pub-crawlers. Upon advising the individuals that they were in violation of the Criminal Justice Act, and the legal repercussions for their civil discourse, they’d often walk over to the victim and apologize. (L. Jones 2012)

Soon however tensions grew among followers of religion(s) who considered portions of their beliefs in conflict with the law. These views, if publically expressed could be in violation of the law and construed as hate speech, or xenophobia. Such was the case about twenty-one days after the amending of the Criminal Justice Act, when street preacher Dale McAlpine told a police officer that homosexuality was a sin, and cited the Bible as his reasoning. Charges were eventually dropped, however it demonstrated exactly how unclear the definition of hate is in regards to freedom of expression. “Police commander for West Cumbria, said: ‘We would like to reassure the public that we respect, and are committed to upholding, the fundamental right to freedom of expression.’” (BBC 2010) Yet many would continue to insist that such reversals of “fortune” perpetuate the former mechanisms of xenophobia which the criminalization of such acts had hoped to eradicate.  I’m reminded of Moisés Kaufman who penned The Laramie Project and who asks of us to consider that each time someone uses hate in verbal form, that it plants the “seeds of violence” and by that act is violence. (Kaufman 2002)

U.K. Immigration

Things were about to get much worse than some drunk teenagers or a Hyde Park preacher. Tensions had been building since 1989, when the Cold War had come to an end, and coincidentally this new phobia replaced it. Initially “over the Iranian fatwa against Salman Rushdie after the publication of his 1988  novel The Satanic Verses(Jones, et al. 2011, 200) and later the July 7, 2005 terrorist attacks on London’s public transport. These events (in addition to 9/11 and the subsequent wars) transformed Britain’s accepted, and integrated Islamic community, which had existed for decades, into target for the new nationalistic identity emerging. A once (and technically still is) diverse melting pot diverged a rift between minorities (called outsiders [slur]) and the manufactured, traditional, secular British image. The result of this altered British identity was a perpetuation of torment towards individuals who were described as “burnt” or “Polish” as exemplified by the thirty-four year old Emma West, in her now famous YouTube captured Underground declaration called #mytramexperience:

'What has this country come to? A load of black people and a load of ****ing Polish. A load of ****ing, yeah... you're all ****ing... do you know what I mean? 

'You ain't English. No, you ain't English either. You ain't English. None of you's ****ing English. Get back to your own ****ing... do you know what sort out your own countries, don't come and do mine.

Go back to where you come from, go back to ****ing Nicaragua or where ever you come from. Just ****ing go back.

'I work, I work, I work, this is my British country until we let you lot come over.
'So what. It is my British country, you ain't British. Are you British? You ain't ****ing British. **** off.

'You ain't British, you're black. Where do you come from?

'No, someone's got to talk up for these lot. Look the whole ****ing tram, look at them. Who is black and who is white.

'There is all black and ****ing burnt people.' (Allen 2011)

West was charged, and remanded into custody ‘for her own safety’, and now awaits trial in June of 2012. She joins an ever growing list of court cases setting legal precedents not only in the United Kingdom, but around the Europe.

West might have a reason to be concerned, as the first successful prosecution under the country’s hate-speech legislation occurred just this past February (2012) when three Muslim taxi drivers were sent to jail for distributing pamphlets during a gay pride parade which suggested that the only way to prevent the corrupting of society is through the death penalty (stoning) for homosexuals. (BBC 2012)  “Two other leaflets called Gay - an acronym for "God Abhors You" – and Turn or Burn were distributed around the same time.” (Brown 2012) They now face up to seven years in jail.

The Outcome.
What’s interesting about the publicity around the legislation, and subsequent application of the law is the increased dialogue not only of those convicted by it, but of their victims who are now free to explain, without retaliation, the terror of hate speech, because the perpetrators are now incarcerated. In the case of the Muslim taxi drivers, several recipients of the printed material were gay:

“During the trial, gay residents told of the impact the leaflet campaign had on their lives. They gave their evidence from behind screens because they said they were terrified of the group knowing they were gay.

One gay resident summed up the atmosphere in the area.
‘It used to be lovely round here,’ he said.

Now, because of these people, you don’t feel safe. I don’t have any problems with Muslims. But these lot need to realise we live in England, not some Islamic state.’

‘Sometimes I wondered whether I would be getting a burning rag through the letterbox or if I would be attacked in the street” -witness” (BBC 2012)

As the U.K. attempts to balance unity against sovereignty, a clearer picture emerges on the effectiveness of criminalizing hate. In 2009, there were 52,028 reported hate crimes. (Association of Chief Police Officers n.d.) By 2010 that number had dwindled to 48,127 (UK Home Office 2012). But this doesn’t necessarily paint a clear picture, as the 2009 numbers was the first time an annual inter-U.K. data collection had been polled. Previous years as estimates indicate a 12% increase between 2008-2009 at 46,300 (Hughes 2010). Yet advocates of the law state these numbers still “mask” the problems associated with hate-crime, and under-reporting of the crimes by victims and/or police continue to persist, though it may explain the increase in data numbers.

The numbers become even more interesting when you consider who has benefited the most from this law. White men (“75% White British Category”, “68% men”) statistically are the majority of the victims of reported hate crime, and interesting it’s men who are typically the defendants (suspected perpetrators) in hate-crime cases. (Natale 2010, 3)

           Considering who is really benefitting from the law, one has to ask of the skeptics, what personal sovereignty have you seceded? Indeed, Sigrid Rausing calls such behavior “paranoia” and finds this new “scare” a frightening response to a non-existence threat. While she makes her case against identity cards for immigrants, there is very little proof that immigrants or Brussels’s British-sized xenophobia laws are any cause for loss of sovereignty or personal freedoms. But the phobia that first occurred in 1989 is still prevalent among the British public. Referring to detained Russian women immigrants she states:

“Seeing the young Russian women in that room, I was struck by how ironic it was that one of our criticisms of the Soviet Union was that it refused to allow its citizens to emigrate.” (Rausing 2009)

Most of Europe traded the Cold War for xenophobia of immigrants at some point in the last twenty years, and the subsequent legislation both in the European Union directive and the amending of United Kingdom’s Criminal Justice Act serve as preventative measures to what could lead to ethnic wars from the inside out. While the United Kingdom has been an island unto itself in past wars, this one breaches all borders and states, including the English Channel. Those who argue that their freedom of speech is at risk are likely those same individuals who would have owned a fall-out shelter or food-storeroom, thirty-to-forty years ago. The Iron Curtain is no longer some set of bordering countries to communism, but the cultural differences that divide us.

It’s the words and actions of the individual that perpetuates this divide, and ultimately it’s the will of the larger civilization to dictate what is acceptable and what will ultimately define society. The fear of evaporating rights is simply another mechanism to aid anarchy, and the laws against it designed to maintain control of a very small amount of people who would risk the welfare of nations on their extreme personal beliefs.

Interestingly it’s not English pride, but prejudice towards immigrants which has invoked this climate of fear in the United Kingdom. This has led to the aforementioned discrimination, and results in hate and violence. It makes sense then, that only those who would be directly affected by laws which limit a person’s right to express prejudice, be the same individuals who perpetuate the phobia of sovereignty loss.

The poster child in Britain against the Criminal Justice Act, and who coincidentally is guilty of violating it several times over, is chairman of the British National Party, and member of the European Parliament, Nick Griffin. In addition to denying that Jews were ever gassed in Holocaust Germany, he has praised the concept of black separatism, and called Islam a “wicked faith.” When asked how to handle immigration, Nick Griffin stated boats en-route should be sunk into the ocean in order to prevent their crossing:

"I didn't say anyone should be murdered at sea — I say boats should be sunk(Griffin 2012)

It’s this mentality that Darcus Howe, a recent citizen of the United Kingdom and by birth Trinidad, and Tobago, would argue is the fraternizing xenophobia that immigrants are forced to endure for years to reach citizenship. Yet he reminds us of the fact that most native Brits, such as Griffin, would likely fail the citizenship test proposed for new migrants. He narrows down his observations of the climate within the United Kingdom to what I suspect would be a good description of what the Criminal Justice Act hopes to accomplish: “being a good neighbor” (Howe 2003).

          It’s these anti-hate laws which are integral in “maintaining public order… for the interest of minorities” who cannot compete in the “marketplace of ideas”[1] and provides equality to all citizens. (Fernandes 2003) The absence of such laws, prior to the Criminal Justice Act created a vacuum in which some had greater levels of freedom of speech than minorities or immigrants. This imbalance, much like in the scales of justice, invokes the idea of fairness.

For the Criminal Justice Act to be legitimate it must be applied uniformly and provide equitable fairness for citizens to express themselves without infringing on others’ rights. Fairness is often a difficult thing to measure, as a balance of freedom surely requires one of the invested parties to lose something to balance the other party’s gain. Historically speaking such behavior resulted from a dwindling public commons in reference to cramped geographical borders. (Snell 2003) This, an ironic revelation considering Britain is an island. We can clearly see human behavior at work, by recalling The Tragedy of The Commons.  In essence, it’s greed which causes us to demand inequality in our benefit. In freedom of speech, the former system of xenophobia and hate benefited some British citizens who saw an eroding (spoken) commons by incoming immigrants. When their advantage, their “freedom of speech”, was leveraged in a more balanced and fair manner, the end result was to claim the law is unjust.

Who’s ‘im, Bill?
A Stranger!
Eave ‘arf a brick at ‘im.[2]

As the United Kingdom reaches towards civility, a balancing act is underway not only in the freedom of speech, but also in the application of the laws like the Criminal Justice Act, to promote respect and tolerance while still allowing political dissent. There’s a fine line between hate speech and the more common words of speech. Hate speech while not always resulting in action, always has the capability of inciting violence, while common speech does not. Though Sunny Handal of The Guardian attempts to downplay the Emma West tram experience, stating that only words were exchanged, he admits to the possibility of violence occurring, and even references a later, less publicized video in which a series of attacks on Pakistani Tube riders was filmed and uploaded to the internet. Hate speech becomes violence, traditional expression of thought and speech do not.

Simply understanding how speech can lead to action, or understanding the responsibility of ownership of those freedoms, is not always enough to curb public opinion away from melancholy. For instance, Reverend Peter Mullen of the Church of England, and who writes for The Telegraph has stated:

The thing is, in Britain today we have complete freedom of speech: it’s just that we’re not allowed to say anything.

That’s the sort of lunatic asylum – oops, sorry! – we’re living in. (Mullen 2012)

What Reverend Mullen alludes to is self-censorship. Self-censorship is a component of freedom of speech that often, through fear of consequence, prevents individuals from engaging in what are typically political or taboo subjects. The willingness of an individual to participate in self-censorship, when it comes to these modern issues on religion, sexuality, or race creates more questions about xenophobia than can be answered here. The value of retaining the ability to use verbal speech to incite harm against another group of people is a paradox against most individual’s personal religious and/or moral codes. Yet continuously, even those who claim they’re unlikely to engage in such behavior, are oft un-willing to sacrifice their right to use it in order to eradicate it. Ironically we self-censor all the time, we electively infringe on our freedom of speech, every day. Take for instance, Dr. Olivia Robinson of The University of Greenwich who recently researched authentic self-expression through a study of 533 volunteers, and who concluded that “being yourself” and “expressing your true feelings” often produced less happiness, and led to being less financially prosperous.

"So in some circumstances, it may be that a polite smile or tactfully keeping quiet may be more conducive to your well-being than saying what you actually think and feel.” (Wardrop 2012)

Conclusion:  Seizing the opportunity

The value of speech versus silence is not a novel innovation, the value of words and speech has always been, in British culture, an instrument of mankind to which there was attributed a monetary attachment. Shakespeare once said in Romeo and Juliet, "How silver-sweet sound”, relating the value of silver coins to words. But it’s Scotsman Thomas Carlyle who first infused in to British culture, (and later the world) a phrase mindlessly repeated,  echoing a precedent for banning hate speech and xenophobia all the way from the Victorian era: “Speech is silver. Silence is golden.” (ESC 2001) But it took hundreds of years of civil law, and a golden opportunity in time when twenty seven countries of a traditionally war-torn world, could choose to come together and say “never again”. Europe’s answer to the cost of their freedom of speech is the countless lives saved from the wars never fought over hate. By that action, Europe chooses its destiny, rather than be a victim of coincidence. Yes, this decision was Europe’s golden opportunity to change themselves, and by it the world- for the better. As humanity awakes to history’s reflection of its deeds, somewhere in Europe exists a looking glass with a litter girl staring through from a world without hate, and asking us “Perhaps, if we all managed to live by the Golden Rule, then there would be no reason to criminalize the antithesis of it?”

Works Cited

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But it's no use going back to yesterday, because I was a different person then.” 
- Alice, [Lewis Carroll]

[1] John Stewart Mills, On Liberty (London: John W Parker  & Son; 1859)
[2] Punch, 25 February 1854.

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