Unpalatable in Word or Deed: Hostility, Difference and Free Expression

Abstract

This article conducts a review of the principal tools used in English criminal law, from the early modern period to the present, to impose limits on free expression, particularly the freedom to exhibit hate‘, in pursuit of social order and to police the boundaries at which the acceptable is segregated from the unacceptable. Against this historical backdrop, the article assesses the controversial Racial and Religious Hatred Act 2006, pointing to (dis)similarities with the preceding Bill and with the incitement to racial hatred measures on which the 2006 Act is modelled. The discussion also explores whether, in light of European and domestic human rights law, the English law of blasphemy should be abolished. It continues with an evaluation of how far existing public order legislation, regarding racially or religiously aggravated‘ offences, are adequate to cover the ground addressed not only by the newly enacted incitement to religious hatred offences but also both the older incitement to racial hatred legislation and the common law as to blasphemy. It is argued that conflict over the mobilisation of criminal law to promote public civility is intrinsic not only to criminal law past and present but also to any pluralist polity committed to addressing social inequality.