Why Heather Herbert’s arrest over Ann Widdecombe comments is bad news for free speech – John McLellan
Sometimes, court action over controversial comments, however abhorrent, is a step too far
Freedom of speech, we are regularly reminded, does not allow you to scream “fire” in a crowded theatre or, thanks to a host of regulations and laws, to claim an “insurance job” when yet another historic Scottish building goes up in smoke.
Publications like this are − despite claims to the contrary by the likes of actor Hugh Grant, the Hacked Off anti-tabloid campaign and their UK government-funded friends in the Press Recognition Panel − subject to a rigorous complaints system overseen by the Independent Press Standards Organisation (IPSO).
Much of the criticism directed at IPSO is because complaints about opinion articles are almost always rejected on the logical basis that outrage is a natural reaction to wide differences of opinion and so inseparable from freedom of expression. There is no right, as the late Ann Widdecombe once said, not to be offended.
‘Personally belittling and demeaning’
But two years ago, IPSO made an exception in a ruling against The Spectator magazine after it published a comment piece about an interview with ex-First Minister Nicola Sturgeon by the writer Juno Dawson, a trans woman who was described as “a man who claims to be a woman”.
As Juno Dawson had a Gender Recognition Certificate, IPSO ruled it this was deliberate misgendering which was “personally belittling and demeaning”, and was a clear warning shot across the industry’s bows as the gender recognition controversy continued to simmer.
In light of last year’s Supreme Court judgment that, for the purposes of the 2010 Equality Act, sex refers to biological sex and not that acquired through a GRC, it’s unclear if the regulator would make the same decision today as no similar complaint has been made since. But as the Supreme Court said, it was only looking at the application of the Equality Act and not getting into the wider identity debate, the chances are that it would.
And so to this month’s events. First there was the dreadful news that the 78-year-old Ann Widdecombe, a former Conservative minister, had been bludgeoned to death at home in what police now say was a targeted attack, quickly followed by a furore over a now widely reported post by Aberdeen University web developer and trans activist Heather Herbert.
READ MORE: How Labour is plotting an attack on free speech in which it decides what the public can read
Amnesty damages its reputation
Then there was the attack in an Amnesty International briefing paper on 117 organisations that it claimed were “anti-rights”, ironically because of their defence of female and gay rights in response to aggressive trans activism. It included the For Women Scotland campaign, which won that Supreme Court case, and the Beira’s Place female-only sexual violence support centre founded by JK Rowling after Edinburgh Rape Crisis appointed a trans woman – a biological man without a GRC – as chief executive and refused to guarantee that women would be counselled by another woman if requested.
Amnesty hastily withdrew the report for an “internal review”, with the rather weak explanation that it hadn’t gone through the usual checks, presumably including the failure to check if it would result in hundreds of cancelled direct debits and legal action by one of the world’s richest women.
Whether such an action would be successful is difficult to say because organisations need to prove material damage for a defamation complaint to succeed, and there’s every chance the publicity for Beira’s might actually be helpful. But there is no question that the reputational damage of ill-considered opinion is now all on Amnesty and deservedly so. Blinded by their righteousness, they didn’t see the danger.
A test of freedom of expression
Nor, it would seem, did Heather Herbert, and here I risk running into danger because for expressing her opinions so forcefully on social media – she allegedly (I have to say that) said Ann Widdecombe’s death was “some good news for once” and allegedly added that she hoped “it was an extremely painful death” – she has been arrested and charged.
That means the contempt of court laws kick in and I am restrained from commenting on a live case. As well as needing to watch my pronouns in case I am accused of misgendering, my freedom of expression has hit a legal barrier.
Herbert was quick to cite freedom of expression as the furore mounted, telling the Metro newspaper: “It’s almost like the campaign for free speech isn’t really about free speech. I look forward to my three-page uncritical article about how I’ve been cancelled.”
It certainly is about freedom of expression now, and this is not the first time Police Scotland has investigated opinions on social media, including recording a comment by Conservative MSP Murdo Fraser as a "non-criminal hate incident", for which he subsequently received an apology.
The dangers posed by public outrage
At risk of being hauled up before the beak, there are serious questions about criminal prosecution for just expressing views, however abhorrent, especially as in this case, the person against whom the alleged comments were made is beyond harm. It therefore centres on public outrage which then becomes a threat itself to what should be a fundamental freedom.
If extreme opinions are forced underground, it makes it more difficult for the rest of us to be aware of such mindsets, forcing us to live in bubbles of acceptable opinion, not dissimilar to the closed worlds in which intolerant attitudes can thrive such as trans activism.
Closing down ‘unacceptable’ opinion just makes it harder to understand, for example what motivates the abuse directed towards people like JK Rowling and fellow Scotsman columnist Susan Dalgety for not swallowing the nonsense that a man can become a woman by willpower alone.
Until Herbert’s arrest, this was a good month for freedom of expression after the humiliation of Prince Harry and chums at the High Court in London. No one of sound mind would argue that freedom does not come with responsibility, but as they discovered, sometimes the courts are a step too far.
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