Free speech advocates are celebrating a recent UK court ruling that criticism of Islam is a protected belief under equalities law. But is it the win for free speech they think it is?
While it’s certainly a step back from proposed laws that would have amounted to the first blasphemy laws in Britain since they were formally repealed in 2008 (with the last successful prosecution in 1977), it’s not exactly a great blow for freedom.
First, the case and the ruling.
Patrick Lee, 61, has launched a belief discrimination claim against the Institute and Faculty of Actuaries (IFoA) after he was banned by the trade body and fined almost £23,000 last year over posts in which he criticised Islam.
The IFoA’s disciplinary body found Mr Lee guilty of misconduct, ruling that 42 of his posts were “either offensive or inflammatory or both”, with 29 said to be “designed to demean or insult Muslims”.
OK – and so effing what? Other groups can be demeaned and insulted till the cows come home. What makes Muslims a protected class?
His posts included referring to the Prophet Mohammed as a “monster” and describing Islam as “morally bankrupt”, a “dangerous cult”, and a “1,300-year-old con trick”.
All arguably correct. Especially that Muhammad was a monster: robber-bandit, warlord, anti-Semite, slave-trader, rapist and child molester: all of those are pretty monstrous, in my book. And remember – these were the good bits. Much worse, as his earliest surviving biographers admit, was excised to make him look better.
At a preliminary hearing held via video link at the London Central Employment Tribunal, Judge David Khan ruled that Mr Lee had shown he genuinely held the belief he put forward, therefore meeting the definition of a “protected belief” under section 10(2) of the Equality Act 2010.
Judge Khan concluded: “I do not find that these tweets and the pleaded belief are mutually exclusive. Nor incompatible.
“I find that the claimant’s evidence in relation to these tweets, that he was inveighing against the offending doctrines and practices because they continued to be treated as authentic and officially sanctioned by Islamic leaders, was not inconsistent with the pleaded belief.”
But the show ain’t over yet. Next February, a tribunal will decide whether or not Lee is going to be allowed to say what he believes.
Still, groups like the Free Speech Union are cock-a-whoop.
The group said: “It renders the government’s efforts to roll out an official definition of ‘Islamophobia’ largely pointless […]
“The judge in this case has grasped the important distinction between disrespecting a belief and disrespecting a person who holds that belief.”
But what neither the judge nor the Free Speech Union seem to have grasped is the even more important distinction between positive and negative freedom. In this case, the judge has ruled in favour of positive freedom.
While ‘positive’ might sound ‘nice’, it very much is not.
The difference between positive and negative freedom is better understood as ‘freedom to’ and ‘freedom from’.
Negative freedom, the ‘freedom from’, doesn’t say what you can do, it sets out what the law cannot stop you from doing. The US First Amendment is a negative freedom: Congress shall make no law. Negative freedom restrains the government, not the citizen.
On the other hand, positive freedom, ‘freedom to’, sets out just how much the government may restrain the citizen. ‘This is what we will let you say’, is how positive freedom works.
In this case, the judge has graciously decided that citizens are allowed to criticise Islam. This is very much not the same as saying that no one can stop you from criticising Islam.
Once put that way, the danger should be obvious: if the law gets to decide what you are allowed to say, it’s so much easier for the law to restrict further and further what you’re allowed to say. You’re only as free as the government says you may be.
When the government is forbidden from restricting what you may say, then you really are free.
