Twitter’s full of people trumpeting near zero understanding of English law or of the convictions in respect of the violence of the last 10 days or so. Nor does the US First Amendment mean what many (often Americans) seem to think. Frustrated? Maybe this will be some use.
“Incitement” has been an offence under English common law pretty much forever. In 2008, the Serious Crime Act 2007 replaced common law “incitement” with statutory offences of encouraging or assisting crime. Incitement in respect of specific statutory offences remains.
“Assisting” means roughly what you probably think it does. But, for clarity, it doesn’t require direct presence at the scene of the crime being “assisted”, or actions which are themselves part of that crime: if they assist the commission of it, that’s a criminal act itself.
Dear friends, American, English or other, if you don’t like that, I suggest you be very careful in England, but also in the USA: read up on the law. The English legal definition, in this context, of “encouraging” will likely worry you even more.
In particular, to be criminal the “encouragement” (effectively incitement by another name) to commit a crime doesn’t need to be aimed at a specific person: addressing it to the world at large can still be a crime under the Act.
On the other hand, typically the state of mind of the defendant in such cases has to involve sufficient certainty that (in their view at the time) the crime they’re “encouraging” will be committed and their intervention will encourage it.
So, if you’re inclined to think “incitement” is being used in some unjust way in England, by prosecuting authorities & courts, you need to look at the law, the case law, the validity of the processes used in each case, the charges, and the full judgements.
Vague assertions about “Orwellian” circumstances or “fascism” just look ill-informed and naïve. And, ultimately, no-one’s going to pay much attention. Even if you’re an all-purpose global genius. (Allegedly).
Of course, a deeper, informed discussion about English law is always welcome. A shallow, uninformed one isn’t. We all have more important things to do. (A Twitter thread is bound to be somewhat “shallow”, naturally. But we can improve on the puddle some have been producing).
That brings us to the crimes which, if “assisted” or “encouraged”, in the meaning of the Act, give rise to a crime under the Act. Essentially, it’s any crime in England. (I’ll take this opportunity to specify: England & Wales, some differences in Scotland/ Northern Ireland).
In the context of the widespread violence, mainly in England, over the last 10 days or so, some of the potentially most relevant crimes relate to terrorism, violence, disorder, and hate. That isn’t comprehensive, and I won’t go through all the statutory bases for these crimes.
I’ll assume we all agree directly participating in terrorism, violence or disorder is criminal and rightly carries significant penalties. I’ll also assume we agree assisting those crimes is, similarly, criminal. No “Orwell” here. If you think otherwise, sorry: discussion over.
That brings us to (a) encouraging crimes such as terrorism, violence & disorder, (b) directly participating in, assisting in or encouraging crimes of hate. Concerning (a), see paragraphs five, six and seven above.
You don’t want to be criminally liable for encouraging terrorism, violence or disorder? Don’t shout out to the world, or say directly to individuals, that acts of terror, violence or disorder should be committed. You might get away with claiming you were joking. Or not.
It’s also a bad idea to give instructions on how to commit those acts, or how to avoid detection. All of this is particularly true – and takes on a heightened quality of imminent threat – if your encouragement/incitement occurs while rioting, terror attacks etc are underway.
Careful judgements are required, yes. But this isn’t rocket science. The Attorney General (AG), the Director of Public Prosecutions (DPP), his Crown Prosecution Service (CPS) team, the judges and, where it comes to it (e.g. not guilty pleas to serious crimes), juries aren’t stupid. Even if many armchair commentators on social media appear far from clued up.
That brings us to (b): hate. For (relative) brevity I’ll consider racial hatred. First, other crimes can be aggravated if they were motivated by or displayed racial hatred. England is sorry if you’re upset: that won’t win you an acquittal. Try not being racist instead.
Second, incitement to racial hatred. (Under the Public Order Act 1986). To be a criminal offence the relevant actions have to be “threatening, abusive or insulting”, *and* be intended to or likely in all the circumstances to stir up racial hatred.
To anyone now shouting “Orwell”, “Kafka” or “fascist”, I’d suggest: (i) try harder: this is embarrassing; (ii) when you come to England, don’t be threatening, abusive or insulting: at all, but specifically in this context don’t be racially threatening, abusive or insulting.
And, even if you’re not coming to England just now, don’t publish stuff – including on social media – which might be seen in England and give rise to a criminal offence there. Because, you know, you might want to visit one day. It’s a lovely place. But the prisons aren’t.
For American friends (and, by the way, some of us on the eastern side of the Atlantic have very close connections to the USA, even vote in US elections – crazy , I know) all this isn’t to say US and English law are identical, or that there’s no debate to be had on aspects of each.
But: some of the ludicrous tweeting going on, some of the bizarre interviews and discussions we’re hearing, suggest either widespread bad faith or astounding ignorance of both US and English law. Let’s take a look at the US First Amendment.
We’ll start in 1907 with the bad tendency test, which (in a landmark case) permitted restriction by the government of freedom speech if the “sole tendency” of that speech was to incite or cause illegal activity. Who’d have thought it? We could almost be in an English court.
It was replaced in 1969 by the imminent lawless action test, allowing the government to ban “advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action & is likely to incite or produce such action”.
The condition of “imminence” isn’t met if the advocacy in question is for illegal action at some indefinite future time. But if you say “meet me at 6 pm today at the Main St immigrants advocacy office, to burn it down”, chances are a free speech defence could fail.
If you say, “we should burn down the Main St immigrants advocacy office”, perhaps a free speech defence works. But if you say it when a violent mob is gathered outside the office, chances are the “imminence test” could be met. Good luck with your First Amendment defence!
So much for free speech when it comes to inciting crimes we all (presumably) agree are crimes. The US isn’t the same as England, but nor is it so dissimilar. If you’re saying any differences mean England is “fascist” and the US is “free”, I want to be on what you are.
Which brings us to hate crime itself. Far from being a foreign concept in the US, there’s well established, extensive, robust law, at the federal and state levels. I’ll focus on federal law and race, although other kinds of hate will generally be covered by what follows.
In US law hate crimes are overt acts that can include acts of violence against persons or property, violation or deprivation of civil rights, certain “true threats,” or acts of intimidation, or conspiracy to commit these crimes. We’ll come back to “true threats”.
For the rest, paging all English hate crime fans: if you’re visiting the USA don’t think you’re protected by “free speech”. Your cross of St George, your Magna Carta and even your US lawyers won’t protect you. American law turns out to be quite, well … Englishy.
But, you might think, “at least I can shout horrifying abuse at people and I’ll be fine in the US”. Really? “True threats” are a real threat to people like you. The Freedom Forum, in Washington DC, has a mission “to foster First Amendment freedoms for all”.
Here’s their very useful summary on true threats:
“The First Amendment prevents the government from restricting (or ‘abridging’) speech. For more than 200 years, the courts have interpreted what free speech means as our country matures and technology changes.
“The general idea is that more speech is better, and the courts are the best place to resolve questions around speech.
“But at some point, someone says something so outrageous that a speech-based response is impossible.
“That’s a line that is crossed when a speaker makes a true threat, because the recipient fears physical harm.
“The Supreme Court has found such true threats are not protected free speech under the First Amendment”
In other words, you can’t just say what you like, and you can’t just get away with it because you assert it’s “political speech”, or “humorous”, or “your constitutional right”. There’s very extensive case law on all this, as you’d expect.
The Supreme Court of the US (SCOTUS) ruled (seven votes to two) in 2023 that the standard should be whether the speaker (the person potentially directing a true threat at another) should have known the receiver (the person potentially being subjected to the true threat) would be scared by the words but said them anyway.
Again, I don’t want to suggest US law is identical to its English counterpart. It isn’t. But if you’re shouting “Orwell”, “Kafka”, “fascist” over the Atlantic at England, you’re a silly person who most likely skipped civics class, or had a terrible teacher.
Once again, despite (or, who knows, perhaps because of) the most conservative US Supreme Court in decades, in the 2023 case presented by an organisation committed to protection of the First Amendment, the key resultant ruling looks pretty … Englishy.
Having gained an understanding of US hate crimes, we now also have an understanding of what, in that area, it’s criminal to incite. If you, falling foul of the imminence test, incite a hate crime, you’ve committed a crime (of incitement) and, if convicted, will be penalised.
And don’t imagine being directly involved in the commission of hate crimes is necessary for criminal liability in respect of them. Conspiracy to commit such a crime is, for example, criminal. As in England: take care, haters! Even better: don’t be haters.
If you have vast wealth, or a vast audience, or you’re just a barrack room lawyer chancing your luck or trolling, it doesn’t mean you understand or have any useful or otherwise valid view on the US constitution, or US criminal law, or their English counterparts.
You’re entitled to your view, of course. Just as you are on whether 2+2 = 𝜋 Everyone else is entitled to see you for what you are. No one has been convicted for “thought crime”. No one is going to be. My advice? Read a (good) book. Or two. Relax. Grow up.
P.S. Please (please) don’t comment on active criminal cases. Unless you have excellent legal advice & even more excellent ethical standards. Thanks.
