The threat by “Pastor” Terry Jones of the “The Dove World Outreach Center” to “Burn a Koran” on 11 September raises interesting questions about the regulation of “hate speech” and conduct.  Author of a book called “Islam is the Devil” (which has a Facebook page), Mr Jones has an interesting history and runs a religious group with about 50 members.  He says he has a right to burn Islam’s holy book because it is “full of lies“, although acknowledging that he has “no experience… whatsoever” of the Koran, he argues that it is “evil” because it espouses something other than Biblical truth and incites radical, violent behaviour among Muslims.

The Koran burning was first announced on Twitter.  On 12 July 2010 Mr Jones sent a series of tweets decrying Islam as fascism and President Obama’s support of a Kenyan constitution that would recognize sharia law and abortion. His final one for the day said: “9/11/2010 Int Burn a Koran Day“.  Since July the plan has attracted worldwide publicity and condemnation from amongst others President Obama, Hilary Clinton and the US Defence Secretary who telephone Mr Jones personally.  As a result of this pressure, Mr Jones has now given an undertaking that he will not burn Korans after an intervention by Barack Obama warning he would put American lives at risk. 

Dove World Outreach Centre’s website has been taken down by its service provider on the grounds that it had breached the terms of its service agreement by usage which “incites violence, threatens violence, or contains harassing content or hate speech”.  However, although the proposed event was plainly highly offensive to Muslims and would probably have caused Anti-American violence in a number of Muslim countries, most commentators agree that it would have been lawful under US law.  As is well known, First Amendment protection extends to expressive conduct such as flag burning (see, eg, United States v Eichman 496 US 310 (1990)) and to conduct which is grossly offensive – such as demonstrators in Nazi uniforms marching through a Jewish community (Smith v Collin 439 U.S. 916 (1978)).

In contrast, under English law the threatened conduct would plainly have been criminal.  The Public Order Act 1986 criminalises the use of threatening, abusive or insulting words or behaviour which is likely to cause, in general terms, public disorder.  Section 5 prohibits disorderly behaviour which causes harassment, alarm or distress.  A criminal offence will be committed under that section if words or behaviour that are threatening, abusive or insulting are used or any such material displayed ‘within the hearing of a person likely to be caused harassment, alarm or distress’. For example, in the case of Norwood v DPP ([2003] EWHC 1564 (Admin)) the applicant had displayed a poster saying “Islam out of Britain”.  His conviction for displaying an insulting sign under section 5 was upheld on the ground that this was necessary to protect the rights of others.  The applicant’s application to the Court of Human Rights was unsuccessful (Norwood v UK (2004) 40 EHRR SE 111).

Which of these approaches is right?   The “hate speech” issue has provoked intense debate – particularly in relation to the issue of “Holocaust denial”.  On this last issue the Court of Human Rights has consistently found that criminal statutes rendering “Holocaust denial” a crime are consistent with the Convention.  It seems likely that similar criminal provisions relating to the symbolic destruction of sacred texts would also be found to be compatible.

The case clearly raises difficult “freedom of speech issues”.  In a recent blogpost libel reform campaigner David Allen Green draws attention to the different ways in which the issue would have been approached in the United Kingdom – leaving little doubt that he prefers the US approach.  This post has provoked a lively response – with commentators on the post divided as to whether the US approach was the correct one.

Two points can be made.  First, there is a strong argument for restricting “hate speech” (or “hate conduct”) if it is directed towards vulnerable and historically disadvantaged minorities.  Although the line is sometimes difficult to draw, there is a clear difference between attacking “Overpaid bankers” and “Thieving gypsies”.  The former are not a vulnerable or disadvantaged minority, the latter are.  “Hate speech” directed at such disadvantage minority groups is likely to make their vulnerable position worse.  Criminalization of Koran burning might be justified on this basis.  In the US and Europe muslims remain a small, disadvantaged minority, subject to discrimination and attack by the majority.

Second, it seems sensible and proportionate to restrict speech or conduct which is liable to provoke violence.  This should not be a “heckler’s veto” – in English law there is a “reasonableness” test.  The person whose conduct is liable to provoke violence can only be arrested if they are acting unreasonably.   So if an English “Pastor” Jones preached a sermon or gave a public lecture, attacking Islam then the fact that some muslims might react violently would not make the sermon or lecture criminal.  If, on the other hand, he burned a pile of Korans, or the Prophet in effigy, his conduct would, probably, be criminal.  In each case there must be an assessment of “reasonableness”.  The absence of a “bright line” can, obviously, cause difficulties and uncertainties.   This is because, under the English and European approach, each case must be assessed on its facts, the balance between rights must be considered in every case.

Put shortly, in England, “Pastor” Jones would have been arrested or otherwise restricted from his provocative conduct.  We believe that this would have been the right approach.