Scotland’s "hate speech law" sparks global outrage

A new Scottish law that criminalizes the “stirring up of” hatred against some groups has triggered a debate far beyond its borders, pitting human rights activists who say it’s needed against a rising tide of harassment and violence against conservative celebrities and politicians who say the law threatens free speech.

Scotland’s law, enacted last week, makes it an imprisonable offense to incite hatred on the basis of race, religion, transgender identity, sexual orientation, age or disability.

“If … it’s intended to stir up hatred because of their membership of that group, then that is a criminal offense,” Nick McKerrell, a senior law lecturer at Glasgow Caledonian University, said in a telephone interview Monday. In Scotland, prosecutors recorded 1,884 hate crime charges relating to sexual identity in 2022-23 — representing an eighth consecutive year-on-year increase — in addition to 55 charges relating to transgender identity.

Rights groups say the change is a much-needed extension of hate crime protections, consolidating them into a single statute for the first time. Its opponents — including Harry Potter author J.K. Rowling — say they are concerned that the protections are so broad that they could unfairly criminalize free expression. (Critics have also argued that women should be listed as a protected category, too; the Scottish government says it intends to do this through separate legislation.)

The furor underlines the polarizing impact of attempts by legislators around…   the world to find a balance. Backlash to the law has been so fierce that it reportedly prompted far-right agitators to flood police with crime reports to overwhelm them in protest.

Legal experts and the Scottish government say the threshold for criminality is high enough to prevent the stifling of debate, pointing out that the law cannot be used to censor jokes or views that are offensive or shocking.

“The test is that it has got to be threatening or abusive to someone, or it has to cause them fear or alarm,” McKerrell said. “That’s a very high threshold.”

In a series of social media posts, which misgendered trans women and mocked their physical appearance, Rowling — who lives in Scotland — wrote that “freedom of speech and belief are at an end … if the accurate description of biological sex is deemed criminal,” and dared Scottish police to arrest her “if what I’ve written here qualifies as an offense.”

Rowling’s remarks last week drew condemnation from rights groups — Stonewall, Britain’s largest LGBTQ charity, said they “trivialise the very real violence committed against us.” Scottish police said Rowling’s comments were “not assessed to be criminal and no further action will be taken,” the Associated Press reported.

Scotland’s leader, Humza Yousaf, told the BBC the newly created offenses “have a very high threshold for criminality.”

“JK Rowling’s tweets may well be offensive, upsetting and insulting to trans people,” Yousaf said, “but it doesn’t mean that they meet a threshold of criminality of being threatening or abusive and intending to stir up hatred.”

Outside Britain, Elon Musk and Joe Rogan were among the high-profile celebrities to critique the legislation. In an episode of his podcast last month, Rogan described the new law as “ridiculous” and incorrectly suggested that it empowered Scottish police to specifically target comedians.