The courts confirmed last week that the “Not Gay! Ex-Gay, Post-Gay and Proud. Get over it!” ad was in fact right to be banned by Transport for London as it would cause ‘grave offense’ to the gay community.
by Peter Richards | 28th March 2013
This was welcomed by many in the gay and wider community. But, there are still those who feel that this was a move against free speech. The campaign http://reformsection5.org.uk for example is seeking to remove the potential to criminalise ‘insulting words or behaviour’ and seeks to influence the Home Office to amend Section 5 of the Public Order Act which includes offences of offence.
I am perplexed as to whether this group, a disparate band of crusaders, is keen to promote positive, free speech or simply wish the right to insult whoever they want without consequence. Is Section 5 really so abused by the authorities? Does it actually limit our ability to challenge each other? Or is abolishing the rights of the public to be offended and ‘insulted’ in favour of a right to freedom of speech justified?
The Public Order Act 1986 is an Act of Parliament which was designed to stop actions which can undermine the order and safety of society. It criminalises ‘disorderly behaviour,’ and aims to prevent the use of ‘threatening, abusive or insulting words’ or the use of signs and displays which are likely to cause ‘harassment, alarm or distress.’ Sections 1-4 of the Act cover several elements including riot, violent disorder, affray (fighting), fear or provocation and causing intentional alarm or distress.
It is Section 5, with a particular focus on ‘insulting’ language and behaviour, which has curiously united several, often warring factions of British society; I struggle to remember a time where The Christian Institute, National Secular Society and indeed Peter Tatchell have agreed to such an extent. Why would any group protest against a piece of legislation which, if removed, would essentially allow their critics the right to undermine and verbally abuse them?
Is it that this law truly undermines freedom of speech as protected by the European Convention on Human Rights? Not necessarily. Are the irregular and carefully selected examples used by the campaign representative of the law’s use? I doubt it. Even the website’s choices are not accurately representative of the situations cited. Let’s look at one which may impact TheGayUk readers. The campaign describes ‘an elderly street preacher [who] was convicted under Section 5 for displaying a sign which said homosexuality was immoral.’ Actually, the sixty-nine year old’s sign said ‘Stop Homosexuality, Stop Lesbianism’ which could be a call to action, a threat, an incitement.
Equally, the campaign misrepresents the Vegelenzangs case as simply ‘a conversation with a Muslim guest about Mohammed and Islamic dress for women’ in which they actually undermined the hijab as ‘bondage.’
In fact, of the three thousand convictions between 2001-2003 under Section 5, the site can only name a few where the law was seen to be stretched or maybe misinterpreted. Does that mean the law should be abandoned or elements dropped? Perhaps it should be a case of advising and guiding the public, police and courts on how the law should be used. The Police have been accused of misusing the powers in Section 14, notably during the 2009 G-20 protests in London where journalists were forced to leave the protests – but that still exists!
Another argument of the campaign is that ‘insults’ are not important. Nigel Farage even feels that ‘people must be free to insult and be insulted’ – glad I don’t know/socialise with/work for him! Several other endorsers of the campaign rightly highlight that higher levels of harassment and discrimination are criminalised elsewhere by the Act or the New Equality Act 2010.
Further Sections of the Public Order Act also require any protests to have provided written notice to the police who can still impose conditions or indeed prohibit a procession if it will cause ‘serious disruption to the life of the community.’
Section 16 Part 3A of the Act specifically protects the public from words, signs and actions which may incite harassment based on race, religion and sexual orientation.
So maybe we are all still protected without Section 5 but it has to be of this level. Do you want to be protected from a protest outside your house?
Of course.
But what if your neighbour decides to greet you with an insult each morning and won’t stop if you ask them to? Should we all be able to withstand a few insults? Sure. But how many insults are too many?
Look at the disproportionate rate of LGBT teen suicide – is that one way of telling us that insults hurt? Pretty obvious to me. But does it have to get to that level before the authorities notice or can help?
Let’s get down to what matters here. What is this all about? Do we really care – and will it impact me? I think it will and I’ll tell you how. I am concerned that the broader legislations above do not cover the more creative abusers. If a fellow bus, train or tube user decides that you might like to be reminded that you are in fact ‘gay’ does that mean they should be arrested? They weren’t inciting hatred, just stating the obvious perhaps? Or what if ‘poof’ is their choice today but not accompanied by any further undermining or personal perspective on whether that is a good or bad thing – can we complain?
Could the police do anything?
A street preacher can point at you menacingly as you hold your partners hand. He can’t be arrested for that. But what if that was the first time you did it and it put you off, it was detrimental to your relationship, your confidence. Or what if someone else sees this and suppresses their feelings, or worse it reinforces or activates any latent homophobia?
What if you observed these actions and no one was the target or victim? David Davis wants to know ‘who should decide who’s insulted?’ I say we all have that right. I say insulting behaviour is the grey area that homophobes like to operate in – they think they can get away with it. Is it acceptable to be offended? Of course it is. But, if the law is changed and you complain to a police officer there’s not much they can do about it.
We all have the right to campaign, protest and provoke thought but do we have this right at the expense of others?
I’m curious as to how insulting materials have to be before they are considered a criminal offense or of inciting hatred. Is undeterred or unchallenged hurtful language a sign of more physical and violent aggression to come?
Gordon Allport (1954) argues that ‘anti-locution’ or badmouthing, insulting and stereotyping is the start of discrimination on his scale for the manifestation of prejudice. This then escalates to avoidance, discrimination, physical attack and extermination. How much protection do we need from each other, and at what stage?
Maybe it is more about everyone taking responsibility. We should all challenge disorder which may be in the public, and our own, interest as the first level before it escalates. What if someone decided to mimic you, standing there looking fabulous with your oversized man-bag draped over your arm? People might laugh – everyone is having a good time – who could be insulted?
They are free to insult you, and if you were a reasonable, stable human, you would appreciate it as their right. Or is that what the campaign would like to believe?
Do we need to accept prejudiced leaflets through our letterbox, racist graffiti or homophobia on buses? Legally we still don’t, for now. Maybe the campaign should be challenging why people feel the need to insult each other, rather than trying to facilitate for more of it.
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