In the week Paris marked the anniversary of the Charlie Hebdo massacre Belfast also saw a small, welcome, not entirely unrelated, blow struck for free speech. In both cases the casus belli was the disputed right to grievously offend, specifically Muslims. In both, the unambiguous messages from the French state and public and from a Northern Ireland magistrates court were important vindications of fundamental liberal democratic values, specifically of the difficult but necessary corollary of free speech, the right to offend.
Pastor James McConnell (78) was acquitted on charges under the 2003 Communications Act of sending “a grossly offensive message” on the internet in May last year, a sermon from his Pentecostal church, the Whitewell Metropolitan Tabernacle, describing Islam as “satanic” and “spawned in hell”. Judge Liam McNally ruled that it was indeed “offensive” but did not reach the “high threshold” of being “grossly offensive”.
Setting out the prosecution case, counsel made clear that he accepted that comments about the nature of Islam were protected religious speech (articles 9 and 10 of the European Convention on Human Rights), and that what the pastor was being prosecuted for was his comment damning all Muslims as untrustworthy: “People say there are good Muslims in Britain – that may be so – but I don’t trust them”. Unpleasant, and clearly a manifestation of prejudice, if not bigotry, such words are akin to those of Marine Le Pen who was also cleared in December of charges of incitement to hatred after comparing Muslim street prayers to the Nazi occupation of France.
The line in the sand remains unclear. Robust debate in a democracy may extend to “vulgar abuse”, or as Judge McNally described McConnell’s words, “nothing other than a bout of name calling”. “The court needs to be very careful not to criminalise speech which, however contemptible, is no more than offensive. It is not the task of the criminal law to censor offensive utterances,” he argued rightly. And we have to acknowledge a price. Sometimes, necessarily, we pay for such largesse by allowing the regrettable fanning of sectarian fires, or the right to cry fire in a crowded room. Or speech verging on defamation.
But if we are not to ban offensive speech, we are not required to offer it a platform. Newspapers and broadcasters in a free society remain free not to publish, and their discretion in this matter – who they offer space to, and what standards of debate are expected – are crucial editorial distinguishing features,"unique selling points", in their relationships with readers/consumers. It is rightly the latter, in buying or tuning in to media outlets, who must make the choices which will determine how civilised debate will be conducted. Not the courts, regulators, overzealous prosecutors, politically-correct civil society groups, or even over-prescriptive press councils.