Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week. As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help us turn the tide against cancel culture.
TRANS – When Ideology Meets Reality: register for our July speakeasy event!
We are delighted to announce that at our next Online Speakeasy, on Tuesday 12th July at 6.30pm BST, we will be joined by Helen Joyce. Helen is a long-time staff writer for The Economist. Her book, Trans: When Ideology Meets Reality, was published by OneWorld in July 2021 and became an immediate bestseller, named by the Times, Spectator and Observer as one of their books of the year. In early 2022 Helen took a leave of absence from the Economist, with the editor-in-chief’s blessing, to work with start-up human-rights organisation Sex Matters, which campaigns for clarity about the two sexes, male and female, in law and in life. Helen will be interviewed by Dr Jan Macvarish, the FSU’s Education and Events Director. Please register here to receive the Zoom link.
FSU opinion poll suggests little public appetite for new Hate Crime Bill in Northern Ireland
Following Judge Desmond Marrinan’s Independent Review of Hate Crime legislation in Northern Ireland, the Department of Justice set up a public consultation process to “inform the development of a Hate Crime Bill”, as the Belfast News Letter put it this week. The formal consultation period ended on 28th March, although policy makers surely must take into account the findings from a new opinion poll carried out by LucidTalk on behalf of the Free Speech Union. (Our first opinion poll!) The headline news is that there’s little public appetite for a Hate Bill in Northern Ireland, and considerable anxiety that it would have a chilling effect on free speech: 81% of respondents said they have not been a victim of a hate crime in the last 12 months; 79% felt that some people being offended some of the time is a price worth paying for freedom of speech, and when asked whether they think people being too easily offended is a problem in Northern Ireland, only 10% said it isn’t a problem, with 44% thinking that it’s a major problem.
Just as concerning is the finding that the Bill would likely exacerbate sectarian tensions, with a striking difference being revealed in the attitude of nationalists and unionists towards the proposed legislation: 85% of Sinn Féin voters supported more severe punishment for crimes motivated by hatred of a victim’s protected characteristics, compared to just 44% of DUP voters; 90% of DUP respondents felt less free to express their personal beliefs than they were 10 years ago, compared to just 43% of Sinn Féin voters, and 85% of Sinn Féin voters supported more severe punishment for crimes motivated by hatred of a victim’s protected characteristics compared to just 44% of DUP voters. What’s particularly worrying is that the Bill would make sectarianism a hate crime – and DUP voters think they’re much more likely to get into trouble for saying something which is misinterpreted as ‘hate speech’ (83%) than Sinn Féin voters (35%).
Reflecting on the significance of the poll’s findings, FSU General Secretary Toby Young said: “Supporters of the second largest political party in Northern Ireland – the DUP – are concerned that a Hate Crime and Public Order (NI) Bill will penalise them for expressing their political views more severely than it will penalise their opponents.” On the basis of these findings, he added, “legislators must ask themselves whether it is advisable to further exacerbate sectarian tensions by passing legislation that will leave one side in the conflict between nationalists and unionists feeling particularly aggrieved. Far from reducing sectarian tensions, this Bill is likely to add fuel to the fire.”
The FSU’s forthcoming Regional Speakeasies
Some of you may already have come along to our in-person meet-ups in pubs and bars, where members can socialise while exploring free speech issues. The Oxford Speakeasy took place on Wednesday 7th June, with our guest for the night being Lecturer in Philosophy at St Hilda’s College, Dr. Roger Teichmann, who talked about “the dangers of groupthink” with a packed room of members and guests. During the remainder of July, we’ll be hosting regional Speakeasies in Manchester (14th July – now fully booked), Cardiff (14th July), Birmingham (20th July), Edinburgh (21st July) and Brighton (27th July). You can check out the dates of these in the new Events section of our website, with more details emailed to all members separately to the newsletter. Details of venues and speakers are not advertised to the general public and will be emailed to members with Eventbrite links so they can sign up for the nearest event to them. Members are, however, welcome to bring guests – particularly those likely to join the FSU!
Employment Tribunal finds for Maya Forstater in landmark free speech ruling
Maya Forstater won her Employment Tribunal claim that she was unfairly discriminated against by her employer because of her gender-critical beliefs. Sociologists have long pointed out that categorisation is an inherently political act, and in a context where battles between gender critical feminists and transactivists have become mainstream news, it’s certainly interesting to examine media reportage of this legal victory with an eye to the way different outlets chose to describe Ms Forstater. “The tax expert” over which the Telegraph, Times, Mail and Evening Standard enthused, for instance, became but a humble “researcher” in the rather less fulsome coverage the case received in the Guardian and Pink News.
Ms Forstater lost her job at the thinktank The Centre for Global Development (CGD) after posting a series of tweets in which she set out her ‘gender critical’ beliefs, namely, that someone’s sex is biological and immutable and cannot be conflated with their gender identity. If this position is at all controversial, it’s because it is opposed to the view held by trans activists that sex is fluid – a social construct, just like gender. The FSU takes no position on Ms Forstater’s gender critical philosophy, but it has consistently defended her right to hold, and to publicly articulate, that philosophy. It’s in that sense that the tribunal’s decision may be said to constitute a landmark ruling for free speech and freedom of expression – or, as Jo Bartosch put it a little more partially (but with no less accuracy) for Spiked, “one in the eye for the censorious trans activists who consider freedom of speech a threat”.
As Sarah Phillimore pointed out in the Critic, “It’s been a long road to victory for Maya Forstater.” (Ms Forstater herself wrote last year for UnHerd about the battle that ensued after she was sacked for “tweeting about the difference between sex and gender identity”). It was in a test case at an Employment Tribunal back in 2019 that Maya first attempted to establish that her tweets should be protected under the 2010 Equality Act. Employment judge James Tayler ruled against Maya, saying that such views – that sex is binary and immutable – were not “worthy of respect in a democratic society” (Critic). Undeterred, in 2021 Forstater appealed this judgement in the Employment Appeal Tribunal, where High Court judge Mr Justice Choudhury ruled that the judgment handed down by the original tribunal had “erred in law” and promptly sent the case back to the tribunal to decide whether the claim had been proved on the facts. The significance of that ruling was wide-ranging, because Mr Justice Choudhury carefully enunciated the proper parameters for the exercise of free speech in a democratic society, making clear that the fact that a belief or statement has the potential to “offend, shock, or disturb” a section of society was not enough for it to be deprived of protection under the Equality Act, which designates “religion or belief” as a protected characteristic.
Maya’s original case then went back to the Employment Tribunal so it could be reconsidered in light of the fact that gender critical beliefs are protected. This week, the tribunal ruled that Maya’s employer had breached employment law by discriminating against Forstater in virtue of her possession of certain protected characteristic, i.e., her gender critical beliefs.
Importantly, the tribunal ruled that Forstater was entitled to criticise those holding an opposite view to her – i.e., a trans rights activist view – and that she had done so legitimately, adding that “mocking or satirising the opposing view is part of the common currency of debate”. (Times). In a statement published following the judgment, Ms Forstater pointed out that her case “matters for everyone who believes in the importance of truth and free speech”. We are all “free to believe whatever we wish”, she added. “What we are not free to do is compel others to believe the same thing, to silence those who disagree with us or to force others to deny reality.”
Free Speech Union challenges chief constables over Lady of Heaven failures
On 3rd June, The Lady of Heaven, an independent film about the daughter of the Prophet Mohammed, was released in cinemas across the UK, including at venues owned by Cineworld, Showcase and Vue and immediately prompted noisy protests. The Bolton Council of Mosques called the film “blasphemous”, the Muslim Council of Britain described the film as “divisive”, and the UK Muslim website 5Pillars called the film “pure, unadulterated filth”. Cinemas in Bradford, Leeds, Sheffield, Bolton, Blackburn, Birmingham and Stratford were targeted by aggressive protests from some Muslims demanding the film not be screened. Cineworld subsequently pulled The Lady of Heaven from all its venues, and, shortly after, Showcase followed suit.
The FSU has now written to four chief constables about their failure to uphold people’s right to see The Lady of Heaven, as well as the right of cinemas to show it. We’ve published one of them on our website – to the Chief Constable of West Yorkshire Police, John Robins QPM, concerning the protests in Bradford and Leeds (which were among the most intimidating in the country). The others we’ve written to are the chief constables of South Yorkshire Police, West Midlands Police and Greater Manchester Police.
There are serious legal issues at stake here, and the letter is well worth a read. In brief, for the reasons set out in detail in the letter, we believe these police forces failed to meet their lawful obligations to police the protests proportionately, and thereby secure the right of local people to see the film, as well as the right of the film’s producers to show their film, and the right of Cineworld and Showcase to screen the film. Specifically, we believe that the de facto censorship imposed by the mobs outside the cinemas breached the Article 10 rights of the cinema chains, who wished to show the film, and of the cinema-goers, who wished to see the film.
We further believe it would be open to those parties to bring proceedings against these police forces under section 7 of the Human Rights Act and we will provide such assistance as we deem reasonable to any party that seeks our help in bringing such proceedings. In advance of any pre-action letter under the pre-action protocol for judicial review, which will trigger a duty of candour, we have requested a response from the chief constables to a series of questions no later than 13th July.
Lady of Heaven cancellations – a request for information from our readers
In addition to the letters sent to the four chief constables, the FSU is seeking to understand the legal ramifications of the cancellation of screenings of The Lady of Heaven from the perspective of both consumers and cinema companies. With that in mind, we would like to know whether any of our members, supporters and friends were affected by the protests in Bradford, Leeds, Sheffield, Bolton, Blackburn, Birmingham or Stratford. Do please get in touch if you or any family members were prevented from seeing the film as a result of the protests, whether that’s because your local cinema cancelled it, because you felt intimidated, or because protestors blocked you from getting in to see it. We’re also keen to hear from members who may have been prevented from screening the film, whether that’s because of direct threats and intimidation or more subtle forms of indirect, moral pressure, either at local community events or as employees of cinema companies. You can reach our case team at firstname.lastname@example.org, or drop us an initial direct message via Twitter (@SpeechUnion), Facebook (@SpeechUnion), LinkedIn (Free Speech Union) or Instagram (@FreeSpeechUnion).
NCHIs – a request for members in Greater London to get in touch
We’d also like to reiterate our call for members to come forward if they’ve had a non-crime hate incident (or NCHI) placed on their record by the Metropolitan Police, or if they’re worried that they might have had one placed on their record. The FSU’s Chief Legal Counsel, Dr Bryn Harris, is particularly keen to get hold of information on this topic, so do please ask around friends, colleagues and family members. The Met’s jurisdiction, by the way, covers the 32 boroughs within Greater London, excluding the City of London. You can find a map here.
Of course, if you think you might have received an NCHI from a force other than the Met, then do also get in touch via the same channels as above. The FSU’s FAQs on how to find out if you have an NCHI recorded against your name is here.
Online Safety Bill – the first ‘priority harm’ is announced
One of (many) problematic aspects to the Online Safety Bill – which we fear will survive the changing of the guard in Downing Street – is the way it will induce big social media companies to remove so-called ‘legal but harmful’ content from their platforms. Exactly what that type of content will look like has so far been anyone’s guess. That’s because the Bill requires the Secretary of State to bring forward secondary legislation in the form of a statutory instrument that will identify “priority harms” that providers will then be under a particular obligation to protect its users from. In other words, it is in this secondary legislation, and not the Bill itself, that the ‘legal but harmful’ content will be identified. We got a glimpse of what to expect this week after the Government announced “state-backed misinformation” would be included in the list of priority harms. (Guardian, Reuters).
Explaining this, Nadine Dorries said, “Russia’s invasion of Ukraine” has “yet again shown how readily Russia can and will weaponise social media to spread disinformation and lies” and that “we cannot allow foreign states or their puppets to use the internet to conduct hostile online warfare unimpeded”. Maybe so, but to understand why the government’s announcement is a cause for concern, it’s necessary to understand the regulatory mechanisms that will kick in once specific priority harms like this have been identified.
After the Statutory Instrument has identified what ‘legal but harmful’ content it wants big social media companies to address, it will then be up to those companies to stipulate in their terms and conditions how they intend to identify and deal with that content. In other words, the practical, day-to-day technical work of defining what state-backed misinformation looks like will be down to Big Tech’s proprietary, almost entirely black-boxed algorithmic content moderation systems (on this point, see section three of our recent briefing paper on the Online Safety Bill here).
As FSU General Secretary Toby Young pointed out to the Epoch Times, the difficulty will come when trying to identify what content is ‘misinformation’ and whether it is ‘state-backed’ or not. For instance, would British Government propaganda wildly overestimating the risk of asymptomatic transmission of COVID-19 fall foul of this new rule? It seems unlikely. So what will social media companies be expected to block? Toby suspects that, “like other rules prohibiting online misinformation, it will be invoked selectively to censor opinions the authorities disapprove of.”
Bill of Rights – the FSU publishes its new briefing document
Like the Online Safety Bill, we don’t know the fate of the Government’s proposed new Bill of Rights. Nevertheless, for those who wish to know more about this Bill, we’ve published a briefing document by Karolien Celie, the FSU’s Legal Officer.
We’re pleased that the Government has taken up several of the suggestions we made in our response to the Bill of Rights consultation and welcome the emphasis on free speech. However, we question whether the Bill will be able to uphold the paramount importance of freedom of expression if it grants too many exceptions to the application of this principle, and if it grants effective immunity to legislation, whereby the courts will be prevented from scrutinising it to see if it is compatible with this pre-eminent right.
You can read the briefing here.
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