Comment: Law must focus on actions, not words

St Mirren footballer Paul McGowan received a lighter sentence for assaulting two policemen than a man who sent threatening messages on Twitter. Picture: Jane Barlow
St Mirren footballer Paul McGowan received a lighter sentence for assaulting two policemen than a man who sent threatening messages on Twitter. Picture: Jane Barlow
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The shift to the offence principle is criminalising both words and people to all our detriment, writes Stuart Waiton

THE philosopher Joel Feinberg has argued that, in cases of law, “we have moved from the harm principle to the offence principle”. What he means is that increasingly society and the law is less interested in actual physical or economic harm and more interested in policing things that are defined as being offensive. One outcome of this is that actual violence is being treated less seriously than words and the notion that sticks and stones may break my bones but words will never harm me is being turned on its head.

Just this month we had a clear illustration of this in the cases of Paul McGowan and Michael Convery. St Mirren player McGowan was found guilty of assaulting police officers, repeatedly kicking one of them, and yet despite having a previous conviction for police assault received only 130 hours of unpaid work as a punishment. Michael Convery on the other hand sent threatening racist Twitter messages to two black Rangers players and received a six-month prison sentence.

This is not an isolated example of words being treated more seriously than actual violence. For example, David Goodwillie, while playing for Blackburn Rovers, was charged with the assault of a man who he “repeatedly punched on the head and body and kicked”. He was sentenced to 80 hours of unpaid work, while David Limond, on the other hand, has just been sentenced to six months in prison for making sectarian threats to a journalist. The list goes on.

I first noticed this trend to not only elevate the harm done by words but also to downgrade the issue of violence while watching the Panorama programme entitled Stadiums of Hate, which wrongly portrayed the coming Polish and Ukrainian European football tournament as a racist bloodbath in waiting. In this hysterical portrayal of racist and fascist Ukrainians and Poles, images of fascist saluting fans were interspersed with shots of a group of Asian men being kicked to bits by a group of skinhead thugs at a football match. What shocked me was that in the voiceover of these events there appeared to be not only no separation of the two things, one a gesture, the other actual serious (and I thought horrifying) violence, but the fact that far more seemed to be made of the singing and gesturing than the actual beatings themselves.

This programme was illustrative of a number of trends that help to explain the increased policing of words. Firstly, there is the overblown fear of the racist (or sectarian) mob by our politically correct elite, a fear that has led to football (where the “mob” can be found) being a focal point for never-ending awareness campaigns, new laws, surveillance and so on. The control of language around football has been elevated into a largely unquestioned principle and words themselves have been increasingly criminalised. Secondly, there is the elitist elevation of certain “right thinking” and “tolerant” issues into moral absolutes, around which politicians queue up to illustrate their worth as people who “oppose racism and sectarianism in all its forms”, leading to the demand that something must be done – that something being an ever-increasing array of laws to police incorrect words.

But it is not only at football or with issue of racism that this policing of language can be seen. There are a variety of “offence” cases, usually related to Facebook or Twitter, that incorporate a whole range of offences, for example the Tom Daley Twitter case.

Society itself has shifted the goalposts in the last few decades and increasingly treats adults as vulnerable subjects who need protection. Radicals of the 1980s have helped this process by giving up on campaigns for social equality and shifting their attention to the need to police incorrect words – the campaign against institutional racism, for example, has shifted to the terrain of newly defined “hate crimes”. They also helped to construct the idea that certain groups in society were vulnerable groups and as such were more easily harmed and needed added protection.

While there remains a caricatured hierarchy of the vulnerable, the genie is now out of the bottle and we can all define ourselves as being offended, abused, traumatised or harassed by certain words. And the newly emerged therapeutic state can step in and find a new role for itself, both to define us as being offended and to protect us from insults.

Recently I noticed a poster that read: “We will not tolerate violence in any form including the use of foul language, verbal abuse and aggression.” I was reminded of the philosopher Slavoj Žižek’s profound statement: “What increasingly appears as the central human right of late-capitalist society is the right not to be harassed, which is a right to be kept at a safe distance from others”.

For Žižek, in our fragmented world with few clear unifying beliefs or morals, the role of the state has become a problematic one, whereby our isolated insecurity is institutionalised, and they assist us by protecting us in our fragile hamster ball worlds. We are all vulnerable now, the state and law tell us, easily offended and undermined by insults, bogus threats or politically incorrect language, and must be protected.

Tragically, this all runs the risk of undermining the moral legitimacy of the law, filling prisons with non-criminals, educating vulnerable groups (indeed all of us) to be increasingly offended, and creating a climate within which the new generation of adults is encouraged to be the most thin-skinned of chronically offended caricatures.

• Stuart Waiton is the author of Snobs Law: Criminalising Football Fans in an Age of Intolerance