No ads! Not here! Get over it? – Censorship, Hate Speech, and Freedom of Expression – Kirsten Sjøvoll

The publicity afforded to the Christian campaign group the Core Issues Trust’s “Not Gay!” posters since they were banned by Boris Johnson last week has been arguably greater than if they actually had ended up on the side of a bus going down Oxford Street. The adverts, which proclaimed “Not gay! Ex-gay, post-gay and proud. Get over it!” and allegedly promote the idea that homosexuality is akin to an illness or addiction which can be cured through therapy were banned by the Mayor of London days before they were due to appear on around 24 bus routes in Central London.

The Mayor did not give reasons for his decision other than to explain to the Guardian that that

“London is one of the most tolerant cities in the world and intolerant of intolerance. It is clearly offensive to suggest that being gay is an illness that someone recovers from and I am not prepared to have that suggestion driven around London on our buses.”

This decision has sparked controversy, with one side saying that it is right to ban an advert which has such homophobic overtones and the other side saying that censorship of this kind is undesirable in principle and counterproductive in practice.

As the Core Issues group seeks legal advice as to whether it has grounds to challenge the decision to pull its ads, questions again arise as to when offensive speech becomes hate speech and if, how, and when the two should be censored by the State.

When does offensive become hateful?

There is no universally accepted definition of “hate speech” and state authorities always tread a fine line when censoring speech which, while offensive or distasteful does not obviously rise to the level of hate speech. The Council of Europe’s Committee of Ministers” Recommendation 97(20) on “hate speech” defines it as

“covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti- Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”

This definition doesn’t explicitly cover homophobic speech but the Council goes on to say that it is included within categories of hate speech. This has now been confirmed by the European Court of Human Rights (see further below).

However, the Recommendations make clear that the classification or not of a statement as “hate speech” draws an important dividing line in the determination of an individual’s article 10 rights. This can occur in two ways: (1) the “hate speech” in question serves to negate the fundamental rights and freedoms enshrined in the Convention, a statement does not fall within the protection of article 10 at all; or (2) the statement attracts the protection of article 10 but may be subject to state interference because it is justified under article 10(2). Conversely, there are those statements which though offensive, are not hate speech and may be tolerated in a democratic society.

“Sexual orientation” hate speech and the ECHR

Typically what exactly amounts to “hatred” and what type of speech is likely to incite, promote or justify it will be fact-specific. The context of the speech, as well as the target audience will be important but not determinative. The European Court of Human Rights has dealt with the issue of hate speech on a number of occasions but only in February 2012 did it finally consider the question of sexual orientation hate speech. In Vejdeland and Others v Sweden [case no. 1813/07], the Court unanimously held that the applicants’ conviction for the dissemination of approximately 100 homophobic leaflets to students in a secondary school was not a violation of their article 10 rights. Inforrm has a post on the judgment here. The statements in this case were more expressly prejudicial and hateful than the Core Issues advertisement, even if they were not direct calls to commit hateful acts. They included allegations that homosexuality was a “deviant sexual proclivity” and alleged that “homosexual lobby organizations” try to “play down paedophilia”. There was relatively little reasoning in the Court’s judgment as to why these statements were so prejudicial; although they obviously are, future cases could have benefited from a more thoughtful analysis of what makes a statement hateful. Applied to the current context, for example, we are not much further forward in our classification of the advert as distasteful, offensive, or hate speech.

In Vejdeland, context was important. The fact that the leaflets were disseminated to school children, at a school which none of the applicants attended, and the rise in LGBT bullying amongst young people in particular were all important in deciding that interference with the applicants’ article 10 rights was necessary in a democratic society for the protection of the reputation and rights of others. This is evidenced in the Concurring Opinion of Judges Spielman and Nussberger who “very reluctantly” find no violation largely because of the circumstances surrounding the distribution. The opinion also considers that

“the offending statements should have been defined more precisely, bearing in mind that, by virtue of Article 17 of the Convention, ‘hate speech’, in the proper meaning of the term is not protected by Article 10. A careful, in-depth analysis of the aim of the speech would have been necessary.” [4]

This is an obligation that befalls domestic authorities in their own analysis as well.

In short, the Court has extended “hate speech” to include offensive statements aimed at homosexuals but does not really give further guidance on what those statements may look like or when a state will be justified in interfering with their publication.

Article 19 ICCPR and General Comment No. 34

Article 19 ICCPR provides:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The Human Rights Committee has generally taken a more generous approach to protecting the right to freedom of opinion and expression under article 19 of the ICCPR. Indeed, General Comment 34, by the admission of the UN Special Rapporteur on Freedom of Expression, effectively makes it impossible for a state to justify interference with Article 19 on the grounds of “protecting public morals”. It is, however, possible to restrict Article 19 rights in order to protect the rights of others. It is unfortunate that these competing rights are not considered in any real sense in General Comment 34, although it is assumed that restricting speech which serves to promote discrimination against a group of individuals by virtue of their sexual orientation would be at least prima facie justified.

Unlike the ECHR, hate speech under the ICCPR is considered separately from the general provision on freedom of expression. Article 20 provides:

Any advocacy of national, religious, or racial hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law

Again, there is no definition of what will constitute hate speech and there is a diversity of practice amongst states parties. The U.S. for example, only counts as hate speech that which incites imminent violence. In its view, the possibility that the statement is inappropriate or controversial is not relevant to the question of whether it deals with a question of public concern and therefore attracts special protection under the First Amendment. (See, for example, Snyder v Phelps et al. [2011].)

Although considered separately, there is substantial overlap between the two provisions and restrictions set out in Article 20 must be permissible to justify a restriction under Article 19. Article 20 is lex specialis only in so far as it mandates a specific legislative response to prohibit hate speech. It appears that the type of speech states may prohibit is limited. For example, laws

What about the adverts?

At its lowest, the Core Values advert does not sit comfortably with the ideals of tolerance and acceptance upon which modern society should be based. But was it so abhorrent that it should have been banned at the very last moment, even after it had been subject to regulatory oversight? It is not a direct call for violence or hatred of homosexuals nor does it explicitly advertise “therapeutic” services to “convert” homosexuals. Of course these two things are not pre-requisites as seen in Vejdeland.  Indeed, the Core Values Trust (and Anglican Mainstream with whom it is affiliated) claims that it is merely a challenge to the advert run by the gay rights organisation, Stonewall which proclaims “Some people are gay. Get over it!” In short, they do not profess to be spreading anti homosexual sentiment but merely to offer an alternative viewpoint on the nature of homosexuality with the aim of contributing to a public debate.

Of course, one must look behind the wounded cries of the Core Values PR machine. The statement, in and of itself tends to suggest that one can “recover” from being gay. Its website, for which there is a link on the adverts, maintains that it does not consider homosexuality to be a “disease” from which there is a “cure” and certainly offers no outward displays of hostility or violence. Beyond that, the organisation promotes an intolerant and discriminatory view of homosexuals. On its homepage it promotes literature bearing such headlines as “The Lepers among Us: Homosexuality and the Life of the Church”. The site talks about homosexuality as a “psychological deficit” and suggests that it offends public, as well as spiritual morals (“mental health professionals are not the guardians of public morality or spiritual direction”). If we apply the context test set out by the European Court, then we see similarities: although not directly aimed at school children, the message would have been displayed on several buses travelling through prominent routes in Central London. Thousands of people would have had no choice but to view the offensive message portrayed.

So was the Mayor justified in banning the advert? I am not convinced that he was. Although offensive and ill-informed, the European Court itself recognised in Vejdeland that this would not generally be enough to justify restricting freedom of expression. I would argue that there is a need to look behind the words to the intention: are they intended to degrade, discriminate, insult or incite hatred on the grounds of sexual orientation? Or are they merely a viewpoint which, however ignorant and distasteful, has a right to be expressed?

Whatever the case, the Mayor of London should have given fuller reasons and regulatory oversight should have been engaged sooner. One wonders why, for example, the Advertising Standards Authority did not consider the promotion of “sexual orientation change efforts” – the process by which homosexuals can become heterosexuals – to fall foul of its code provisions on misleading advertising. Core Values is apparently considering a contractual claim against TFL for pulling out of its agreement to run the adverts. Should it decide to go down the Article 10 route, then one hopes that at least some clarification in this decidedly murky area will be forthcoming.

Kirsten Sjøvoll is a trainee barrister at Matrix Chambers