Two U.K. judges delivered a major victory for free speech recently when they cleared a U.K. citizen of a criminal conviction for violating the 2003 Communications Act by “misgendering” a transgender person and making derogatory online comments. The judges found that free speech “encompasses the right to offend,” a ruling that could set a precedent for free expression and undermine the legality of “hate speech” laws in the U.K., where citizens have been arrested and tried for what they say to or about transgenders and other minority groups.
In 2018, U.K. citizen Kate Scottow was arrested and taken from her two children for comments that she made to and about Stefanie Hayden, who identifies as a woman. Among other things, Scottow insisted on referring to Hayden as a man and used derogatory comments such as “pig in a wig” and “racist.” Hayden argued that Scottow had harassed her and “misgendered” her to “annoy people like me,” stating, “It’s calculated to violate my dignity as a woman.” A district judge had ruled against Scottow, but two judges on the U.K. Court of Appeals recently overturned the decision on appeal, saying that the prosecution was an “unjustified state interference with free speech.”
In February 2020, Scottow was found guilty of the 2003 Communications Act for “persistently making use of a public communications network to cause annoyance, inconvenience, and anxiety to Stephanie Hayden, 48, between September 2018 and last May.”
Scottow was accused of intentionally “misgendering” Hayden, who began medically transitioning from female to male in 2007, by using masculine pronouns to refer to Hayden during a time of “significant online abuse.”
District Judge Margaret Dodds told Scottow, “Your comments contributed nothing to a debate. We teach children to be kind to each other and not to call each other names in the playground.”
Scottow appealed the decision, and Lord Justice Bean and Mr. Justice Warby ruled in favor of Scottow. Warby said that the Communications Act was “not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature.’”
The judges, who are both senior members of the judiciary, essentially ruled that speech is not a crime when they stated, “Free speech encompasses the right to offend, and indeed to abuse another.”
Their expanded judgement read:
“The Crown evidently did not appreciate the need to justify the prosecution but saw it as the defendant’s task to press the free speech argument. The prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another. The Judge appears to have considered that a criminal conviction was merited for acts of unkindness, and calling others names and that such acts could only be justified if they made a contribution to a ‘proper debate.’ Neither prosecution nor Judge considered whether some more demanding interpretation of s 127 or addressed the question of what legitimate aim was pursued, or, more importantly, whether the conviction of this defendant on these facts was necessary: whether it was a proportionate means of responding to some pressing social need.”
Scottow responded to her release by saying,
“It was necessary to enshrine one of the most fundamental rights of every living being in a democratic society — the right to freedom of speech that is now routinely attacked.”
This is a monumental ruling, considering the recent history of restricting free speech in the U.K. Police have enthusiastically enforced speech laws, going after citizens simply for posting their opinion online. According to figures obtained by the London Times, police arrested 3,395 U.K. residents for violations of the Communications Act, although the number if likely higher since only 29 of 42 police forces responded to the paper’s Freedom of Information Act requests.
While the police have been aggressive, the courts have been inconsistent. An example is the case of Miranda Yardley, a “transwoman” who, ironically, rejects the idea that “transwomen” are women. Offended by her stance, transgender activists turned Yardley in for harassment aggravated by hatred. Upon reaching court, however, the case was thrown out.
Maria MacLachlan, meanwhile, felt the sting of the court’s power for simply using “disrespectful” speech. She had sued for —but was denied — compensation after being physically assaulted by a supporter of transgender ideology, but the judge chided MacLachlan for how she spoke about the people who had assaulted her. The judge reasoned, “It was notable that when I asked Ms. MacLachlan to refer to Ms. Wolf as ‘she’, she did so with bad grace — having asked her to do so she continued to refer to Ms. Wolf as ‘he’ and ‘him.”
MacLachlan later responded,
“My experience of court was much worse than the assault…. I have never been able to think of any of my assailants as women because, at the time of the assault, they all looked and behaved very much like men and I had no idea that any of them identified as women…. It was while I was having to relive the assault and answer questions about it while watching it on video that I slipped back to using “he” and earned a rebuke from the judge. I responded that I thought of the defendant ‘who is male’ as a male.”
Meanwhile, Hayden, who brought the now-dismissed case against Scottow, was involved in another hate speech case after reporting Graham Linehan, creator of the Irish sitcom Father Ted, “for using Hayden’s birth name and pronouns.” The police gave Linehan a verbal harassment warning.
Free speech has been under assault in the U.K. for some time. Law-abiding citizens have been harassed by police simply for “misgendering” people, and hate speech laws in the U.K. and Europe abroad have virtually eliminated the right to free speech. As a result, people are beginning to self-censor out of fear even those opinions and fact-based statements that don’t run afoul of the law or aggressive minority activists and scolds. Unfortunately, this same authoritarian mindset towards speech has taken hold in America and is only likely to get worse. Joe Biden has named Richard Stengel as transition leader for the U.S. Agency for Global Media. Stengel has advocated for European-style hate speech laws, calling the First Amendment’s protection of all speech a “design flaw.” These cases in the U.K. show what speech laws do: They eliminate citizens’ right to voice their opinion. Hopefully, the U.K. appellate ruling will signal a turning point in the U.K. and the authorities there will also recognize what the two judges did: that “freedom only to speak inoffensively is not worth having.”