How can Christians make sense of hate speech laws from a Biblical worldview? – an analysis of the Hate Crime and Public Order (Scotland) Act 2021

By Matthew Ferguson

Introduction

The enactment of the Hate Crime and Public Order (Scotland) Act 2021 in April this year made quite a splash, not just in the UK but globally. As seems customary, the more extreme responses on both sides enjoyed the greatest traction – although the true position is somewhat less exciting.

Substantially, the Scottish Act does little new. The crime of “stirring up hatred”, which grabbed headlines, has been on the books since the Race Relations Act 1965. Although the Act extends this offence to other groups like age, religion and sexuality, it is counterbalanced by free speech protections for “ideas that offend, shock or disturb.”

This is not to let this law off the hook – it contains a good deal that is worrisome, and it remains an open question how the courts will interpret it. Moreover, it will certainly not be the last iteration of hate speech laws in the UK. For Christians, it is necessary to be on our guard against such developments, adopting a critical, Biblical lens towards the laws which govern us. This article aims to demonstrate how Christians can respond using this biblical approach to evaluating hate speech laws, using the Scottish Act as a case study.

Discouragement of truthful speech

The Biblical position on freedom of speech is a complex subject requiring a lengthier treatment. Briefly, the Bible does not proclaim a clear principle of free expression in the Enlightenment vein. The Old Testament does contain a handful of defined speech prohibitions – notably blasphemy, false prophecy and the cursing of parents (Leviticus 24:16; Deuteronomy 13:5; Exodus 21:17); however, these were given in the context of a theocratic polity, and even then there was no policing of speech beyond these limited exceptions. In the New Testament, it is easy to forget that Jesus was crucified not for any miracles or insurrection, but for his speech (Matthew 26:64-65).

That being said, where the Bible is explicit is its exhortation of truthful speech (Zechariah 8:16; Proverbs 12:17-19; Ephesians 4:25; John 8:32). From Old Testament prophets to the ministry of Jesus and the Apostles, Christian faithfulness has meant telling people truths they may not want to hear (e.g. John 6:60-66). Politically, therefore, Christians ought to support laws which defend the ability to express truth and conscience (1 Timothy 2:1-2).

Among the problems of hate crime laws is the difficulty of defining “hatred”. “Hatred”, in its ordinary sense, involves an emotion of antipathy, disdain or revulsion towards someone or something. However, in recent usage this word has morphed into something different. Hatred has become less about emotion and more about opinion or worldview. Being ‘hateful’ now is to hold views or values contrary to today’s

prevailing – and quickly changing – norms. This is why otherwise non-controversial and traditional Biblical teachings on marriage are considered “hateful”, while a person speaking abuse towards Christians may do so, acting under a banner of “love”.

With this new thinking seeping into many parts of modern life, judges are unlikely to be immune to it. An infamous example was the Employment Tribunal case of Maya Forstater, whose employment contract was withdrawn for her opinion that transwomen are not women. The judge denounced this view as “not worthy of respect in a democratic society”. Although this judgment was overturned, if this thinking remains influential across society, it will inevitably spill into judicial precedent.

But even if courts hold a liberal line, the mere threat of legal action could still have a chilling effect. People may decide to self-censor rather than face the gruelling prospect of a trial – even if they would eventually be exonerated. These are all obvious Christian concerns. For instance, on the trans issue, many Christians believe that sex is ‘assigned’ at conception, God-given and immutable, an essential part of being fashioned in the divine image (Genesis 5:2). As such, to be required to affirm that a man can transition into a woman would be a profound breach of conscience. What if, then, the courts decide that a refusal to address a person by their chosen pronouns amounts to a hate crime? There is a danger that truth and conscience will suffer as collateral damage of this understanding of “hatred”.

Interference with household autonomy

What is novel about the Scottish Act is the removal of protections for speech uttered within the privacy of homes. In England, such speech is protected, the reasoning being: first, governments should be slow to interfere in private affairs of families; and second, that the family home is a proper setting for exploring ideas – even outlandish ones. The Scottish Act strips households of these protections, removing any distinction between public pronouncements and fireside chatter.

Any encroachment into family autonomy should concern Christians, since the Biblical vision for society is one of empowered, responsible households. Under Old Testament law, families were regarded as core societal institutions, with households playing a prominent constitutional role in the governance of society. While today we are familiar with the tripartite separation of state power (executive, legislative and judicial), the Biblical vision is of a wider, multipolar settlement, in which key responsibilities vest in families and local communities.

Of course, this does not mean the state should play no role in family welfare; few would argue that child abuse should be tolerated under the guise of “family autonomy”. However, it does mean governments should be slow to intervene in the family domain save in extreme situations like deprivation and abuse. This principle, in application, would resist state attempts to micromanage household life. As with similar debates like smacking children, the question is less about the appropriateness of different punishments, but about who gets to decide what’s best for the household.

To speak freely in one’s own home is a vital part of household autonomy. It is barely 35 years since half of Europe was subject to intrusive state surveillance, including wire-tapping of homes. Now, it is unlikely we will find microphones hiding behind Scottish sockets; but the state is making family conversations its business. The most obvious worry is the relational tension this could cause among family members, most notably parents and children. It is hardly a stretch to imagine children being encouraged to alert teachers to any “hateful” remarks made in their homes.

The home is not a public policy forum: it is a private place where we can let off steam, air grievances, express true feelings, safe in the knowledge that our words stay within four walls. This privacy is an essential component of a healthy human life. Psychologically, it matters to have a place where we can express what we truly think, no matter how crude. The alternative is to compel the suppression and festering of such thoughts, which is potentially far more damaging.

Indeed, freedom of speech in the home has an essential civilising function. The home is where we can test ideas and negotiate worldviews. It is where we learn which jokes are funny and which beyond the pale. In our homes we can play with ill-digested thoughts and expose them to correction and improvement. If somebody harbours – say – racist views, are not private dwellings the ideal environment for such views to be countered and corrected in love? Would social media shouting matches or criminal prosecutions fare better?

An ideological shift

To appreciate the nature of hate crime laws, it is necessary not just to examine their practical effects but to understand the ideological values which undergird them.

Within the Scottish Act lies an irony that helps make sense of what is going on. Tucked away in the Act is an obscure provision abolishing the ancient offence of blasphemy. This abolition is, of course, entirely symbolic – the last Scottish blasphemy trial was in 1842, making the law today defunct. Yet what makes this so instructively ironic is this: the Act drops one kind of blasphemy law merely to reinstate it with another. That is, replacing an inviolable God with irreproachable expressions of human self-identity.

Restrictions on speech, when not motivated solely by brute power, normally involve guarding things we revere. Human societies have inherent tendencies towards the idolising of someone or something. Indeed, the now-rescinded blasphemy offence was a vestige of mediaeval Christendom, when insulting God, Bible or Church was punishable by law. Political ideologies are little different: both the right and left veer towards censorship, particularly in their excesses – what differs is simply their object of reverence.

Speech restrictions are a useful way of testing what a society truly prizes. One significant moral transformation in recent decades has been how we conceptualise human identity. We have moved towards an “understanding of individual freedom as freedom to live out a psychological identity… in order for the individual to be truly free, his environment must be one that… affirms and celebrates his self-expression.” Therefore, for instance, a Christian disagreeing with somebody’s sexual activities can be construed as an affront to who he is, an undermining of his very existence. In this thinking, “loving the sinner but hating the sin” becomes an impossibility.

Now, it is perfectly understandable why people should be protected from racial abuse and unjust discrimination. Most Christians readily shun all forms of abuse, and find threats based on traits like race to be particularly repugnant. This is hatred in its truest sense, and the law should intervene. But navigating the volatile terrain of hate speech calls for discernment. Caution must be taken that we do not, in the name of protecting the vulnerable, end up stifling unpopular and even truthful ideas.

Freedom of thought and expression must be jealously guarded, and for Christians, the right to criticise other religions/worldviews and proclaim the Gospel – even when unfashionable or offensive. Where the world increasingly looks inward to the self for truth and validation, Christians know that fallen human nature will always disappoint. True meaning is found not in “self-love” or “living our truth”, but in shedding the self, putting on Christ (Rom. 13:14), and evaluating worldviews and opinions by the truth of God’s word. This is the Christian, counter-cultural message of freedom – one that is worth defending.

The views and opinions expressed above are those of the author alone and do not necessarily reflect those of the Jubilee Centre or its trustees.

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[1] For a fuller discussion on blasphemy in Old Testament law, see Professor Jonathan Burnside’s God, Justice and Society: Aspects of Law and Legality in the Bible (2011), pp.435-437. In Old Testament Israel blasphemy was understood as a high charge, not simply the belittling of but the cursing or reviling of God’s name: “Blasphemy is ‘character assassination’”.

[2] Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf (publishing.service.gov.uk), paragraph 90

[3] For a discussion on Biblical constitutionalism, see B.G.B. Logsdon, Multipolarity and Covenant: Towards a Biblical Framework for Constitutional Safeguards (December 1989).

[4] For a useful discussion on the increasing intrusion of the law into questions of conscience and choice, see Jonathan Sumption, Trials of the State: Law and the Decline of Politics (2019), Chapter 1: Law’s Expanding Empire. “This tells us something about the changing attitude of our society to law. It marks the expansion of the public space at the expense of the private space that was once thought sacrosanct. Even when there are no compelling welfare considerations involved, we resort to law to impose uniform solutions in areas where we once tolerated a diversity of judgement and behaviour. We are afraid to let people be guided by their own moral judgments, in case they arrive at answers we do not agree with.” (pp.13-14)

[5] The Oscar-winning film on life in East Germany under the Stasi, Das Leben der Anderen, portrays so movingly the anguish, insecurity and inhumanity of being watched constantly.

[6] This being said, the proliferation of information-gathering devices within homes means that we would be more exposed than ever, should government agencies choose to flex their monitoring capabilities.

[7] As Professor Jonathan Haidt explains in The Righteous Mind: Why Good People are Divided by Politics and Religion (2012), (Chapter 7: The Moral Foundations of Politics), right wing ideology tends to extol institutions and objects which bind communities together: religious tenets, national symbols. Meanwhile, left wing ideology venerates human nature and its expression, especially of the poor, downtrodden and minorities. An example of right wing outrage is the castigation of sport stars who refuse to stand for flag and anthem; on the left, the firing of staff who fail to affirm the declared genders of colleagues.

[8] Emily Ho et al, Relational Rights: A World-inclusive and Relationships-affirming Understanding of the Rights of Every Human Person (2021), pp.17-18. For disclosure, the present writer is one of the authors of this book.

[9] For recent examples of this, one need not look much further than the responses received by the former Scottish Deputy First Minister, Kate Forbes, for her Christian beliefs on matters like abortion and marriage.