LL295-52561

LL295 – Media Law
Word Count: 3,994 (excluding Bibliography)
Referencing Style: OSCOLA
Does Freedom of Speech
in Britain Still Encompass
a Right to Offend, Shock
or Disturb?

2
Table of Contents
Introduction ............................................................. 3
I. The Importance of Free Speech ............................ 4
II. Current Law ...................................................... 11
III. Reform of the Law ........................................... 15
Conclusion .............................................................. 16
Bibliography ........................................................... 17

3
Introduction
In a pluralistic society, the ability to freely express ourselves is paramount and fundamental
for a functioning and free society. That freedom should encompass the ability to write,
publish, joke, criticise and even the ability to offend others. Indeed, the ECtHR stated in
Handyside1 that freedom of expression is meant to extend to ideas that ‘offend, shock or
disturb’2. Given the wide scope of the question, this essay will only focus on avoiding
offence with regards to blasphemy, racial and religious hatred. It will be argued that freedom
of speech in Britain does not encompass a right to offend, shock or disturb and this is mainly
due to the introduction of the Racial and Religious Hatred Act 2006.
I will argue that speech should be freer than it currently is and that the right to free speech
should be almost absolute, as is the case in the US, with a very limited number of caveats.
The exceptions to the rule are when speech is likely to cause serious physical harm or when
there is a high chance of incitement of violence.
This essay will have three sections: firstly, I will discuss the importance of free speech and
why we, as a pluralistic society, should be able to say anything we please, even if we hold
very distasteful views. Then, I will explain why I feel that freedom of speech in Britain does
not still encompass a right to offend, shock or disturb by looking at the current law. In
particular I will look at the implementation of the Racial and Religious Hatred Act and how
it was a completely unnecessary piece of legislation given the number of other legal
instruments that were present. Finally, I will discuss how I feel the law can be reformed to
adapt to the requirement that freedom of speech be almost absolute.
1
Handyside v UK [1976] 5493/72
2
ibid, at [49]

4
I – The importance of Free Speech
Rowan Atkinson stated that a tolerant society is an ‘open and vigorous one, not one that is
closed and stifled in some contrived notion of correctness’.3 Furthermore, he said that a ‘law
which attempts to say you can criticise or ridicule ideas as long as they are not religious ideas
is a peculiar law’ because it promotes the idea to not be offended.4 There is no right not to be
offended even when sometimes people will hold very offensive and bigoted views.
Nevertheless, even if there was such a right, the right to offend is arguably far more
important, because the right to offend represents the notion of transparency and openness
whilst the right not to offend represents oppression. Furthermore, free and pluralistic societies
are strong enough to be able to absorb and discredit any people with racist or homophobic
views. In Herceg v Hustler Magazine, Inc., the US Court of Appeal stated that:
The constitutional protection accorded to the freedom of speech and of the press is not
based on the naïve belief that speech can do no harm but on the confidence that the
benefits society reaps from the free flow and exchange of ideas outweigh the costs
society endures by receiving apprehensible or dangerous ideas.5
Indeed, John Rawls’ idea of political liberalism6 was that the only way to learn and progress
as a pluralistic society is to listen to other people’s views and to have the requisite avenues to
discuss and debate those views, even if those views represented the most abhorrent and
3
Rowan Atkinson, 'The Opposition's Case - Speech To The House Of Lords', in Lisa Appignanesi
(eds), Free Expression is No Offence (1st edn,Penguin 2005).
4
ibid.
5
814 F.2d 1017, at [8]
6
John Rawls, 'Justice As Fairness: Political Not Metaphysical' (1985) 14 Wiley
http://www.jstor.org/stable/2265349 accessed 9 April 2015.

5
distasteful opinions. Furthermore, it is submitted that having the law intervene to punish
people who hold certain offensive, abhorrent views will not abolish a person’s racist or
homophobic views. Rather, it will simply suppress them and allow them to fester and
potentially be passed on to others further down the line. Soli Sorajbee, quoted in the Select
Committee on religious offences in England and Wales, said that:
Experience shows that criminal laws prohibiting hate speech and expression will
encourage intolerance, divisiveness and unreasonable interference with freedom of
expression.7
The only way to ensure distasteful and old-fashioned views are discarded from a pluralistic
society is to allow those views to be aired and to ensure that the law does not punish someone
who says something distasteful.
There are a number of justifications that are often given for the importance of free speech.
Fenwick and Phillipson8 name four arguments: the argument from moral autonomy, from
truth, from participation in a democracy and from human development. The argument from
moral autonomy is mostly based on the idea that each individual has the moral choice to do
and speak as they please and that if the State were to intervene, it would be an affront to
human dignity to use the law to force the moral views and ideas of certain people upon
others. Whilst ‘being one of the key deontological justifications for human rights in general’,9
this is an argument that is usually discarded when discussing free speech. John Stuart Mill
7
(2003), HL 95-I, Chapter 4, at [52]
8
Fenwick, H. and Phillipson, G. (2006). Media FreedomUnder the Human Rights Act.Oxford:
Oxford University Press. Ch. 9
9
ibid.

6
formulated probably the most famous exposition of the argument from truth. The basis of his
thesis was that the only way the truth is likely to emerge is if there were avenues of
uninhibited discussion and debate. He wrote in ‘On Liberty’ that:
If all mankind minus one, were of one opinion, and only one person were of the
contrary opinion, mankind would be no more justified in silencing that one person,
than he, if he had the power, would be justified in silencing mankind. 10
Thirdly, the argument from participation in democracy states that citizens cannot fully
participate in a democracy unless they have the relevant understanding of political issues,
thus the avenues for open discussion is paramount. Finally, the argument from human
development suggests that freedom of expression is necessary to facilitate individual self-
fulfilment.
Of course, there is the argument that many will advance, that in a pluralistic society, all the
different cultures, ethnicities and views must be respected. In Whitehouse v Lemon, Lord
Scarman stated that:
In an increasingly plural society, such as that of modern Britain, it is necessary not
only to respect the differing religious beliefs, feelings and practices of all, but also to
protect them from scurrility, vilification, ridicule and contempt. 11
10
John Stuart Mill, 'On Liberty' (Utilitarianism.com,1859)
<http://www.utilitarianism.com/ol/one.html> accessed 9 April 2015
11
[1979] 2 WLR 281, at 658

7
Accordingly, the argument follows, that the only way we, as a society, can be respectful of
others is to be intolerant to people who have offensive or distasteful views. There is a certain
irony present in the idea that to live in a pluralistic and inclusive society we have to place
restraints on the principle of free speech. Kenan Malik12 disagrees with the notion that there
must be limits placed on free speech. He states that it is precisely the fact that we live in a
pluralistic society that there should be no limits placed on freedom of expression. Given that
there are many different cultures, ethnicities and thus viewpoints, it is an inevitable fact that
there will be clashes in viewpoints and beliefs and that one person’s beliefs will deeply
offend another’s. Arguably, this is an important aspect of a pluralistic society because it is
those differences in opinions that result in social change and progress. Throughout history,
any scientific or social discoveries have offended certain deeply held beliefs and conventions
at the time. Ergo, by not allowing people to sometimes offend others, we will not, as a
society, advance. Instead of seeking to censor speech, a diverse and vibrant society such as
Britain’s should be seeking to encourage and advance it.
Malik highlights that the biggest problem in the free speech debate is that there is a
‘continuous blurring of the distinctions between giving offence, fomenting hatred and
inciting violence’.13 A common example given is Salman Rushdie’s ‘The Satanic Verses’14
where many suggested that he was inciting violence by provoking hatred through his use of
abusive words about Islam. The line between giving offence and inciting hatred is a very fine
one and the distinctions between offending someone, inciting hatred and inciting violence are
12
Kenan Malik, 'The Importance Of Giving Offence - Index On Censorship' (Indexoncensorship.org,
2007) <http://www.indexoncensorship.org/2007/01/the-importance-of-giving-offence/ > accessed 9
April 2015
13
ibid.
14
Salman Rushdie, The Satanic Verses (Random House Trade Paperbacks 2008).

8
very critical. I am in agreement with Malik’s views that giving offence is ‘not only
acceptable but necessary in a healthy democratic society’. Inciting hatred will inevitably
cause social and political problems15 but that isn’t an issue that the legislation currently
present cannot deal with. This will be further discussed in the subsequent section of the essay.
Where the law should intervene and legislate against freedom of speech is when one attempts
to incite violence because that is an issue that the State must deal with; however, again, that
should only be the case if the definition of what amounts to incitement is very tightly
ascribed, something which isn’t currently the case in Britain.
The numerous different cultures are often seen as being sacred in society and the reasoning
behind this is the idea that a person’s culture defines who that person is and thus is paramount
to his identity. Ergo, if we want to treat people with the dignity and respect they deserve, we
shouldn’t be engaging in offensive speech and views against those cultures. It is admitted that
there are many people who cause offence with their racist or homophobic views and people
with those repugnant views clearly prevent society from progressing; rather, they ensure that
society regresses back to a time when we were less developed and educated. However, just
because a certain number of people hold such abhorrent views, it does not follow that they
should not be allowed to make public those views. This is because it would be absolutely
pointless to defend the right of freedom of speech only for people whose views we agree
with; discourse and discussion permits views to change in society, allowing for political and
social progression. One could only classify oneself as a liberal who is tolerant of all other
views if one’s instinct is not to be tolerable to someone’s (e.g. racist) views. Put differently,
15
BBC News,'BNP Leader Cleared Of Race Hate' (2006)
<http://news.bbc.co.uk/2/hi/uk_news/england/bradford/6135060.stm> accessed 9 April 2015

9
you can only classify yourself as tolerant if you are able to tolerate the intolerable. Indeed, as
Atkinson says:
A tolerant society [is] one where in the name of freedom, the tolerance that is
promoted is the tolerance of occasionally hearing things you don’t want to hear or of
reading things you don’t want to read.16
Similarly with incitement to racial hatred, as a matter of principle, advocating for the right to
free speech is meaningless just because someone we despise, such as a racist, says something
repulsive. Simply banning and censoring abhorrent and offensive thoughts and ideas do not
result in those ideas disappearing. Rather, they simply fester underground and may result in a
strengthening of the bigot or racist’s stance, leading to more people holding those views.
Paradoxically, by using the law to punish those with offensive views, we, as a society, are
abdicating all responsibility that a diverse and multi-cultural society should possess to deal
with those views. The only way to ensure we eradicate views that racists, bigots and
homophobes have is by allowing them to communicate their ideas in a public domain where
others can debate and challenge them over their views. Convincing converse arguments can
often change someone’s stance on a particular issue. Malik goes further and states that part of
the problem in modern-day society is the fact that if a racist articulates his views, we
immediately label it as ‘offensive’. Thus, by labelling it is as offensive in the first place, we
are, in essence, putting it ‘beyond the bounds of rational debate’.17 As such, this is something
that we have to change in order to allow people’s ‘offensive’ racist, bigoted views to be
16
Atkinson, ‘The Opposition’s Case’ (n 3).
17
Malik, ‘The Importance of Giving Offence’ (n 12).

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expressed in public to allow others to debate and educate a person who holds deeply
‘offensive’ views.
Of course there will be times where there will be physical, violent consequences to a person
inciting hatred. Obvious examples would include a homophobe inciting anti-gay violence or
an imam issuing a fatwa inciting violence upon an individual.18 It is important to highlight
the difference between speech and action – it is one thing to state that you want to kill
someone, and quite another to physically carry it out. However, it is that distinction that has
also been substantially blurred. Malik calls this the blurring of the ‘idea of human agency and
moral responsibility because lurking underneath the argument, is the idea that people respond
like automata to words or images’.19 Thus, in essence, the need to censor offensive speech is
to ensure those who may resort to violence don’t do so. Conversely, one may counter that
argument by suggesting that those who feel silenced have more of a reason to speak out and
the medium of violence is an easy way of being heard. Another problem present is that it is
very difficult to legally prove incitement. As such, the caveat that the law should step in to
prevent incitement of violence must be very tightly defined – something which the current
legislation does not satisfy.
18
Mail Online, 'Iranian Mullah Revives Death Fatwa Against Salman Rushdie' (2014)
<http://www.dailymail.co.uk/news/article-2560683/Iranian-mullah-revives-death-fatwa-against-
Salman-Rushdie-Satanic-Verses-25-years-issued.html> accessed 9 April 2015.accessed 9 April 2015.
19
Malik, ‘The Importance of Giving Offence’ (n 12).

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II – Current Law
The main reason Britain does not still encompass the right to offend, shock or disturb is
because of the inadequacy of the law, after the Racial and Religious Hatred Act 2006 was
introduced. The Act was intended to close a perceived gap in the law but the problem with
this is that the supposed gap in the law was very small. This, coupled with the fact that there
were a number of statutes and policing powers that could have dealt with criminal offences
against the person or property involving harassment or incitement to violence, have meant
that the law is inadequate and confusing. The legislative Acts include Ss 28-32 of the Crime
and Disorder Act 1998, as amended by S 39 of the Anti-Terrorism Crime and Security
Act 2001 which added sentence enhancements to nine existing offences, S 145 of the
Criminal Justices Act 2003 which applies to all other offences, Ss 4-5 (which cover all
forms of harassment) and Ss 18-19 (which cover harassment of a racial or religious nature) of
the Public Order Act 1986 and the Protection from Harassment Act 1997. Many felt that
the problem found in the law was a lack of enforcement, rather than a lack of legislation.20
Furthermore, a number of critics felt that the government was simply attempting to win votes
from disenchanted British Muslim citizens as a result of the previous New Labour’s
involvement in Iraq as opposed to addressing a genuine problem in the law.21
The only area of the law that had gaps was when a person incited another to ‘religious
hatred’. Incitement to racial hatred is unlawful, per the Public Order Act 1986 but people
were free to incite other types of hatred, such as religious hatred. However, as mentioned
above, the perceived gap in the law is tiny – there were only 76 prosecutions for racial hatred
20
Kay Goodall, 'Incitement To Religious Hatred: All Talk And No Substance?' (2007) 70 Modern
Law Review.
21
Anthony Lester,'Free Speech,Religious Freedom And The Offence Of Blasphemy', in Lisa
Appignanesi (eds), Free Expression is No Offence (1st edn,Penguin 2005).

12
between 1987 and 2005.22 This was further exacerbated by the presence of blasphemy law,
which was confined only to publications that were offensive to Christians. The Government
swiftly repealed the law of blasphemy after the controversy of the Jerry Springer – The Opera
case. It is somewhat ironic that one of the reasons the Government decided to repeal the law
of blasphemy was because the Racial and Religious Act 2006 was now in place, since the
law of blasphemy was used as a justification for the implementation of the 2006 Act.23 Thus,
whilst the abolition of the law of blasphemy was a positive move by the Government, it did
not solve the problem found in the current law given the presence of the 2006 Act, which had
created more problems than it solved.
The main reason why the 2006 Act was unnecessary was because other pieces of legislation
were present such as the Public Order Act, in particular S 5 which penalises ‘threatening,
abusive or insulting’ speech or writing, or any ‘visible representation’ that might cause alarm
or distress; these provisions are adequate enough to protect Muslims, and anyone of any other
faith. Furthermore, this offence carries a heavier sentence if aggravated by religious or racial
hatred.24 One of the main issues is how the law is meant to distinguish between race and
religion. The argument put forward as to the difference between the two is that one’s race is a
characteristic that one is born with and is unable to change whereas one is, technically, able
to choose the religion (or lack of one). As such, any racist criticisms were always seen as
unfair and offensive. To bring a claim of incitement of religious hatred under the 2006 Act,
one must prove that there was a direct malevolent intention to stir up religious hatred.
22
Goodall, ‘Incitement to Religious Hatred’ (n 20).
23
ibid.
24
Case of Norwood v DPP [2003] EWHC 1564 where there was an aggregation of S 5(1b) Public
Order Act 1986.

13
Religious hatred is defined as being: ‘hatred against a group of persons defined by reference
to religious belief or lack of religious belief’.25
There is one main objection to this: an argument can be made that there isn’t a great
distinction between race and religion because ‘some people are born into tight-knit religious
communities [where] the costs of exit are so high as to be prohibitive’ and that for many
believers, ‘religion has come to be a signifier as strong as, if not stronger than ethnicity in
their personal identities’.26 Indeed:
For billions of people, religion is as integral to identity as race is and as little chosen
… a person can renounce or alter religious beliefs inherited from their parents, as they
cannot do with their race, but this does not change the fact that religion is just as
constitutive of identity as race or any other collective physical characteristic or
marker.27
So, if the incitement was racial, it was deemed illegal but if it were religious in nature, it was
deemed lawful. Furthermore, Michael Ignatieff highlights how:
Religion is not just any set of opinions, but a particular kind that provides central
elements of moral and metaphysical identity for particular communities of people.
25
Racial and Religious Hatred Act,Part 3(a), 29(a).
26
Monica Ali, 'Do We Need Laws On Hatred?',in Lisa Appignanesi (eds), Free Expression is No
Offence (1st edn,Penguin 2005).
27
Michael Ignatieff, 'Respect And The Rules Of The Road', in Lisa Appignanesi (eds), Free
Expression is No Offence (1st edn,Penguin 2005).

14
Since many millions of people identify themselves by their religious faith, it is as
wrong to insult a person for their religion, as it is to insult them for their race.28
He goes on to distinguish the difference between two types of insults towards a religion:
insulting a certain doctrine or practice of a religion and insulting a religion as a whole.
Timothy Garton Ash highlights another problem with the law that the Government insists is
‘intended only to prevent incitement against persons, not against religions.’ He says that ‘the
line between criticising believers and criticising beliefs is quite unclear’.29 This is further
backed up by Anthony Lester, who is unclear on why it would not be unlawful, under the
2006 Act, to criticise the ‘beliefs, teachings, or practices of a religion or its followers by
claiming that they are false or harmful, or to express antipathy or dislike of particular
religions or their adherents’. It is unclear as to why they would not be unlawful if they were
done ‘with the intention of stirring up religious hatred’.30 As such, one of the key problems
with regards to incitement of religious hatred is the differences found between the Home
Office’s statement on the incitement offences and the statute. The differences are difficult to
integrate and the consequent uncertainty generated is dangerous as it can have a chilling
effect on freedom of expression.
The Attorney General is the only person who can authorise a prosecution under the Racial
and Religious Hatred Act 2006, so a deluge of claims under the Act is unlikely. Whilst that
means that an attempt can be made to balance the competing interests of freedom of speech
and unlawful criminal conduct, the ‘effect of enacting these offences would be to require the
28
ibid.
29
Timothy Garton Ash, 'Save Our Raphael', in Lisa Appignanesi (eds), Free Expression is No Offence
(1st edn, Penguin 2005).
30
Lester, ‘Free Speech,Religious Freedom and the Offence of Blasphemy’ (n 21).

15
police to log and consider each complaint of an offence’.31 It is clear that a wise Attorney-
General would rarely consent to a prosecution but again, that could provide more trouble and
uncertainty given that some people may use an attorney-general’s refusal to consent as
‘evidence of the discriminatory operation of the law’.32
III – Reform of the law
Whilst unlikely to occur, I would propose that the Racial and Religious Hatred Act 2006 is
abolished given its unclear and confusing nature. There are two ways to go about what to
have instead of having a sweepingly broad offence of stirring up ‘religious and racial’ hatred.
Either, as Anthony Lester proposes, we have a ‘carefully tailored provision that makes it
clear that individuals sharing a common racial or religious identity are equally protected
when hatred is stirred up against them because of their actual or perceived group identity’,33
or we have a provision that prosecution can only be made when there is an incitement to
violence rather than simply fomenting hatred, whether racial or religious. If the latter were
implemented, the definition of what would amount to ‘incitement to violence’ would have to
be very tightly ascribed. In addition to my reasoning above, I raise the question of whether
the law is the right instrument or is capable to distinguish between rational analysis, satire
and criticism of a particular religion and incitement to physical violence.
31
ibid.
32
ibid.
33
ibid.

16
Conclusion
In this essay, I have argued that freedom of speech in Britain does not still encompass the
right to offend, disturb or shock mainly due to the passing of the Racial and Religious
Hatred Act 2006 which was intended to address the perceived gap in the law. However, the
legislation was completely unnecessary given the other legal instruments and policing powers
that were present. Furthermore, I have argued that freedom of speech should be much more
unrestricted and should be a right that is almost absolute, except for situations when speech
results in incitement to violence. However, the definition of incitement of violence has to be
tightly defined. Thus, rather than introduce new laws and legislation, the Government should
implement more effective enforcement of the existing laws by both the police and the
prosecutors.

17
Bibliography
Articles
Ali M, 'Do We Need Laws On Hatred?', in Lisa Appignanesi (eds), Free Expression is No
Offence (1st edn, Penguin 2005)
Ash T, 'Save Our Raphael', in Lisa Appignanesi (eds), Free Expression is No Offence (1st
edn, Penguin 2005)
Atkinson R, 'The Opposition's Case - Speech To The House Of Lords', in Lisa Appignanesi
(eds), Free Expression is No Offence (1st edn, Penguin 2005)
Goodall K, 'Incitement To Religious Hatred: All Talk And No Substance?' (2007) 70 Modern
Law Review
Ignatieff M, 'Respect And The Rules Of The Road', in Lisa Appignanesi (eds), Free
Expression is No Offence (1st edn, Penguin 2005)
Lester A, 'Free Speech, Religious Freedom And The Offence Of Blasphemy', in Lisa
Appignanesi (eds), Free Expression is No Offence (1st edn, Penguin 2005)
Rawls J, 'Justice As Fairness: Political Not Metaphysical' (1985) 14 Wiley
<http://www.jstor.org/stable/2265349 > accessed 9 April 2015
Books
Appignanesi L, Free Expression Is No Offence (Penguin 2005)
Fenwick H and Phillipson G, Media Freedom Under The Human Rights Act (Oxford
University Press 2006)
Robertson G and Nicol A, Media Law (Penguin 2008)
Rushdie S, The Satanic Verses (Random House Trade Paperbacks 2008)

18
Online Resources
BBC News, 'BNP Leader Cleared Of Race Hate' (2006)
http://news.bbc.co.uk/2/hi/uk_news/england/bradford/6135060.stm accessed 9 April 2015
Mail Online, 'Iranian Mullah Revives Death Fatwa Against Salman Rushdie' (2014)
<http://www.dailymail.co.uk/news/article-2560683/Iranian-mullah-revives-death-fatwa-
against-Salman-Rushdie-Satanic-Verses-25-years-issued.html > accessed 9 April 2015
Malik K, 'The Importance Of Giving Offence - Index On Censorship'
(Indexoncensorship.org, 2007) <http://www.indexoncensorship.org/2007/01/the-importance-
of-giving-offence/> accessed 9 April 2015
Mill J, 'On Liberty' (Utilitarianism.com, 1859) <http://www.utilitarianism.com/ol/one.html>
accessed 9 April 2015
The Economist, 'First—And Last—Do No Harm' (2015)
<http://www.economist.com/news/leaders/21640347-speech-should-be-freer-it-many-
western-countries-firstand-lastdo-no-harm> accessed 12 April 2015
Other Resources
House of Lords, 'Select Committee On Religious Offences In England And Wales' (The
Stationery Office Limited 2003)
Cases
UK
Handyside v UK [1976] 5493/72
Whitehouse v Lemon (1979) 2 WLR 281
Norwood v DPP [2003] EWHC 1564 (Admin)

19
US
Herceg v Hustler Magazine, Inc.814 F.2d 1017
Legislation
Racial and Religious Hatred Act 2006
Crime and Disorder Act 1998
Anti-Terrorism Crime and Security Act 2001
Criminal Justices Act 2003
Public Order Act 1986
Protection from Harassment Act 1997

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