In December 2011 the Scottish Parliament passed the Offensive Behaviour at Football and Threatening Communication Bill, which criminalises ‘offensive’ songs and chants by football fans and making ‘serious threats’, including expressions of religious hatred, online and elsewhere. The new law carries penalties of fines as well as prison sentences of up to five years [Ref:BBC News]. ‘Sectarian’ offence is considered a particular problem in Scottish football, as the two biggest clubs, Rangers and Celtic, are associated with Protestants and Catholics respectively, and some of the fans’ traditional songs and chants refer to the historic conflict in Northern Ireland, or include insults to the opposing fans’ religion. While there is no comparable legislation proposed in England and Wales (or indeed Northern Ireland), similar concerns have been expressed about offensive chants by football fans across the UK, as well as abusive comments from players on the pitch. The anti-racist Kick it Out campaign has in recent years broadened out its campaigning to challenge anti-Semitic and homophobic language used by football fans and players alike [Ref: Kick it Out]. The issue of offensive language extends beyond football, however, and, as reflected in the Scottish legislation, has become a particular concern in the context of online forums and social networking, especially Twitter. Recent Twitter controversies have included comedian Ricky Gervais causing offence by using the word ‘mong’ [Ref: Daily Mail], MP Diane Abbott attracting criticism for her comments about race [Ref: Guardian] and radio presenter Jon Gaunt censured for calling a guest ‘a Nazi’ [Ref: spiked]. Another concern is offensive speech in online forums, especially blogs, where anonymous commenters (often called “trolls”) sometimes write extremely offensive posts which, some argue, limits the free speech of the (often female) writers [Ref: New Statesman]. In its most extreme form, this is already a criminal offence under the Communications Act 2003, which outlaws sending messages that are “grossly offensive or of an indecent, obscene or menacing character,” and has been used to jail online “trolls” [Ref: BBC News]. Regardless of whether it is simply bad law as implemented [Ref: Catholic Herald] there is a principle at stake: should the Scottish legislation provide a model for more comprehensive regulation of public forums, or is free speech (even if offensive) an absolute which the law should have little interest in?

Legal limits to free speech
Free speech is a principle held dear by many, and regarded as essential to a healthy democracy. Nevertheless, a number of restrictions apply even in a relatively free and open society like Britain. The Official Secrets Act prevents people from revealing information judged likely to harm the national interest. The libel laws prevent people from publishing defamatory stories about others. And it is illegal to incite racial or religious hatred, or to threaten physical violence [Ref: Wikipedia]. Most of these laws have their critics, and some argue free speech should mean just that, but the issue here is whether the law should curb expression on the basis of offensiveness alone. Part of what is at stake is what we consider to be offensive, and how much offence we are willing to tolerate. Some see offensive football chants and insulting blog posts as trivial and best indulged or ignored. Others believe such things have a poisonous effect on our wider culture, and must be stamped out. But the subjective nature of offence means it can be hard to draw a line. Free speech campaigners argue that section five of the Public Order Act, which outlaws insulting language, ‘is so broad that almost any protester on any subject can be arrested and fined for harassment, causing “alarm or distress”’ [Ref: Guardian].

Should we tolerate ‘offensive’ language?
Offensive though certain ideas might be to many of us, it’s not illegal to hate others because of their skin colour, political or religious beliefs, sexuality or football affiliations, and traditionally it is not illegal to express hateful opinions [Ref: Guardian]. Critics of regulation argue that the discussion of ‘offence’ tends to undermine the distinction between deliberate incitement to violence or hatred and simply expressing an opinion, or even using particular words [Ref: spiked]. Others insist that ‘all hate crime begins with verbal abuse,’ and all offensive language must therefore be taken seriously [Ref: Guardian]. From this perspective, insulting remarks should not be tolerated even if made in jest or the context of something like a football match where rivalries have traditionally inspired foul and aggressive language that would not be acceptable in other contexts. Regardless of the situation or intention, offence is unacceptable. Moreover, those concerned about online abuse point out that those on the receiving end often find it hard to tell whether offensive comments are meant as childish insults or serious threats [Ref: New Statesman]. Supporters of free speech have traditionally argued the best way to counter offensive ideas is through more speech rather than censorship, but advocates of regulation point out that offensive speech isn’t always about ideas, and that this particular case for free speech falls down when offence is gratuitous.

Can the law be used to civilise public discourse?
Journalist Simon Jenkins argues genuine free speech cannot exist without regulation, just as the free movement of traffic requires everyone to follow certain rules. He cites US President Obama’s comments about the need to civilise political debate, ‘to impose some order on the chaos,’ rather than allowing hate-mongers to dominate the public sphere [Ref: Guardian]. Many observers worry about the vitriolic language, or hate speech, that sometimes characterises American politics, and similar concerns are increasingly voiced about the decline of civility and respect in online debate in the UK and elsewhere. Some argue that bans and tough action on abuse sends a message about what’s acceptable and forces people to take their speech more seriously, thereby raising the level of public debate and discussion [Ref: Guardian]. Others argue that by promoting a ‘culture of offence’, the regulation of offensive speech only encourages people to make complaints and counter-complaints, effectively ‘infantilising’ public debate and leading to a loss of freedom of speech for all [Ref: Guardian]. Social networks have even been used to spread outrage about offensive comments made elsewhere, such as when broadcaster Jeremy Clarkson made a controversial joke on television following a public sector strike in November, and became the target of a frantic campaign online. Journalist Brendan O’Neill has coined the term ‘Twitch-hunt’ to describe this phenomenon [Ref: The Week]. Ultimately, though, the question is whether free speech should always trump civility, or whether offence is sometimes serious enough to justify legal curbs.