On ‘inflammatory’ speech, it’s time for Britain to follow the lead of the US

Bobby Vylan’s remarks are not worthy of jail time – but neither were Lucy Connolly’s

Paul Embery is one of the most interesting, insightful and original voices to have emerged in British journalism for some time — Douglas Murray

Bobby Vylan (photo: Stefan Bollmann via Wikimedia Commons)

I loathe political opportunism. In particular, I dislike it when individuals who can usually be found campaigning passionately on one side of a specific issue or cause suddenly adopt a contrary stance simply because they have sensed a chance to sock it to the other side.

I have noticed the phenomenon occurring especially in debates over free speech, where some who generally rail in the fiercest terms against cancel culture will cynically set aside their ‘principles’ and demand that a political opponent who happens to have caused offence in some way suffer the most punitive sanction.

Such double standards have been on display in recent days amid the furore over the performance of poet and rapper Bobby Vylan – he who said something derogatory about his ‘Zionist’ former boss and chanted ‘Death to the IDF!’ – at the Glastonbury festival. Don’t misunderstand me: I think Vylan is an oaf, and I wouldn’t cross the road to see his brand of ‘art’ if you paid me. Neither do I agree with his stance on the Israel-Palestine conflict. But I found utterly dispiriting the calls for Vylan’s prosecution by some who in other circumstances would see themselves as the ultimate ‘free speech warriors’. Prosecuted? For using the term ‘Zionist’ and calling for the destruction of a foreign army? If these utterances, unpleasant as they might be, are now the standard for ‘hate crime’ or ‘incitement’, we are on a very slippery slope.

In fact, I think we all ought to take a step back and calm down a bit. Vile and obnoxious language or views should, of course, be challenged. No idea or opinion is worthy of being ringfenced from criticism or scrutiny. But we should reserve demands for cancellation or prosecution for only the most egregious cases.

If you have argued – as I have – that Lucy Connolly does not belong in jail, then consistency demands you argue the same for Bobby Vylan. By no measure were his words more hate-filled or provocative than hers. Don’t be tempted into insisting upon exemplary punishment for him simply on the grounds that she got rough justice. Two wrongs do not make a right. On matters of law and justice, principle should always come before what is politically expedient.

An unintended consequence, in fact, of the harsh sentence meted out to Connolly is that her case has become a sort of cause célèbre. When, last October, Judge Melbourne Inman KC jailed her for 31 months, he couldn’t possibly have imagined the eventual blowback, which has even included an expression of concern by the White House. The danger now is that, as we have seen with the Vylan affair, every other case alleging inflammatory speech will be measured against it, and to avoid claims of two-tier justice the authorities will dish out harsher and harsher punishments for transgressions which, in a sane world, would not come before the courts at all.

It is obvious, for example, from chatter on social media that many are eagerly awaiting the trial of Ricky Jones, the Labour councillor who was captured on video apparently calling for political opponents to have their throats cut. If they perceive that Jones is held to a different standard than Connolly, they will erupt. That’s always the risk when the justice system makes an example of someone.

There is a much better approach to these things. It is one that is followed in the United States. In 1969, that nation’s supreme court ruled, in the landmark judgment in Brandenburg v Ohio, that inflammatory speech is protected under the first amendment other than where it is intended and, crucially, likely to cause imminent lawless action. In other words, a statement, even one which was calculated to incite lawbreaking, will not be considered to have crossed the line if it is unlikely to be immediately acted upon.

Under that standard – which seems to me to be an eminently sensible one – Lucy Connolly would probably not have been brought before a court. Neither would Bobby Vylan (sub judice rules prohibit comment on the merits of Ricky Jones’s prosecution). The statements of both Connolly and Vylan were plainly made ‘in the abstract’; and any claim that it was more likely than not that someone would have immediately heeded Connolly’s call to set fire to a migrant hotel or Vylan’s to kill members of the Israel Defense Forces would be untenable.

None of this is to say that the likes of Connolly and Vylan should not feel the heat when they engage in inflammatory or provocative speech. But we should be very slow to insist they have their lives and careers wrecked or, worse, be incarcerated.

The right to freedom of expression – as it exists within both the law and the traditional norms of everyday society – has been undermined enough in contemporary Britain without our constantly demanding the bar be lowered further. In a recent piece for the Daily Telegraph, former supreme court judge Lord Sumption argued that there has been a drift towards censorship under the law, with mere ‘abusive’ or ‘insulting’ words potentially meeting the threshold for criminality – and even where nobody had been placed in danger. He also cited the advent of ‘non-crime hate incidents’, which police are required to record and which appear on enhanced criminal record checks and may prevent individuals getting a job. ‘The job of the police is to enforce the criminal law,’ Lord Sumption wrote, ‘not to regulate behaviour which is perfectly lawful but loutish, offensive, politically incorrect or contrary to received opinion.’

His lordship is surely right about the degree to which the legal dial has shifted. And outside of the remit of the law – in our national and local institutions, workplaces, educational establishment, and on the streets – there has been a similar slide towards authoritarianism, with the parameters for what is considered acceptable speech becoming ever narrower.

Many within authority in our country appear unwilling or unable to recognise that support for the right to free speech inevitably means accepting that individuals will sometimes say things that others may find repugnant. The right is otherwise rendered meaningless. As John Stuart Mill famously wrote, ‘Strange it is that men should admit the validity of the arguments for free discussion, but object to their being “pushed to an extreme”; not seeing that unless the reasons are good for an extreme case, they are not good for any case.’

Mill was right. Just as our cousins across the Atlantic are right.

We should learn from them.

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