The UK government’s definition of Anti-Muslim hostility will chill free speech

Gerard Casey* argues that free speech advocates should have serious concerns, about the UK Government’s non-statutory definition of anti-Muslim hostility**:

Anti-Muslim hostility is: intentionally engaging in, assisting or encouraging criminal acts – including acts of violence, vandalism, harassment, or intimidation, whether physical, verbal, written or electronically communicated – that are directed at Muslims because of their religion or at those who are perceived to be Muslim, including where that perception is based on assumptions about ethnicity, race or appearance. It is also the prejudicial stereotyping of Muslims, or people perceived to be Muslim including because of their ethnic or racial backgrounds or their appearance and treating them as a collective group defined by fixed and negative characteristics, with the intention of encouraging hatred against them, irrespective of their actual opinions, beliefs, or actions as individuals. It is engaging in unlawful discrimination where the relevant conduct – including the creation or use of practices and biases within institutions – is intended to disadvantage Muslims in public and economic life.

The Government Guidance on this matter is anxious to re-assure British citizens that this non-statutory definition is not about “granting special privileges, giving preferential treatment to particular communities, or protecting the religion of Islam. It is about protecting people from unacceptable hostile behaviour that seeks to intimidate and divide. It is about upholding the principle that everybody should expect and enjoy equal dignity, justice, security, and opportunity.”

The claim of the Guidance that this non-statutory definition is not about ‘granting special privileges’ or ‘giving preferential treatment to particular communities’ is blatantly nonsensical for the obvious reason that it applies only to Muslims and not to practitioners of any other religion and so, by its very wording, gives ’special privileges’ and ‘preferential treatment to a particular community’, namely, to Muslims. To avoid this obvious particularity, the definition would have to be re-cast as concerning ‘anti-X hostility,’ where X would be fleshed out as those who practice particular religions, such as Hindus, Zoroastrians, Catholics, Latter Day Saints, etc., with the remainder of the definition altered to be non-specific.

According to Baroness Falkner, the former chair of the Equality and Human Rights Commission, herself a Muslim, “the definition will have a chilling effect on free speech and is one step towards a blasphemy law. It will restrict what you can do and say about Muslims in ways that do not apply to speech or actions about people of any other faith.” But is Baroness Falkner correct in thinking that this definition of anti-Muslim hostility will, in fact, exercise a chilling effect on free speech? After all, the Guidance goes to great lengths to insist that the definition is to be construed in line with the “the fundamental right of every person in the United Kingdom to exercise freedom of speech and expression within the law,” giving as examples of expressions that are protected: “criticisms of a religion or belief, including Islam, or of its practices, or critical analyses of its historical development; ridiculing or insulting a religion or belief, including Islam, or portraying it in a manner that some of its adherents might find disrespectful or scandalous; criticism of the belief systems or practices of individual adherents of a religion or belief, including Islam; raising concerns in the public interest; contributing to debates in the public interest, including academic and political debate.”

Doth the lady protest too much? Andrew Gilligan , for one, is deeply sceptical of the Guidance’s reassurances on free speech, arguing that “If this were not a threat to free speech, the government would not need to say so,” and “for the state to publish a list of examples of permitted speech sets a deeply sinister precedent, and on subjects far wider than Muslims. Is only speech ‘in the public interest’ now to be allowed? Who decides what the public interest is? Doesn’t freedom mean the right to say something that’s not in the public interest, too?” Is it the case, for example, that the definition would risk penalising legitimate criticism of Islamists, a concern expressed by Ian, Lord Austin,

Other criticisms of this definition have come from Jonathan Hall KC, the independent reviewer of terrorism legislation, who warns “the definition’s vagueness will lead to public bodies being far too nervous about what’s permissible: ‘The government has positively encouraged all organisations, public and private, to adopt it. But do local authorities, libraries, universities, charities, museums – possibly under pressure from activists and entryists – have the strength and inclination to resist becoming organs of self-censorship?’”

The Free Speech Union, which is fundraising to initiate a judicial review of the action of the Secretary of State, Steve Reed, in unlawfully imposing the definition, believes it to be “wildly incoherent, leaving the door wide open for legitimate criticism to be labelled as ‘hostility’, and to be censured.” Whether it is incoherent or not—and on the face of it is not obviously coherent—it is certainly verbose, and that verboseness lends itself to creative legal interpretations that would, in all likelihood, exercise a chilling effect on those unwilling to have their speech and writings subjected to the inspection of am Anti-Muslim Tsar and his or her minions.

If the price of freedom is eternal vigilance, the price of freedom of speech appears to be a seemingly eternal struggle to resist the blandishments of those who would, for a variety of ostensibly laudable purposes, cabin, crib and confine the right of Britons to express their views without being daunted by the prospect of having to engage in esoteric legal hermeneutics.

*Gerard Casey is Emeritus Professor of Philosophy at University College Dublin and a member of Dublin Universities AFAF and the Free Speech Union.

**Some of the material in the final paragraphs of this piece is adapted from a publication of the FSU.

Image Credit. from Charlie Hebdo 7 January 2025 10 Anniversary Edition.