ON INCITING RELIGIOUS HATRED: The bill to make illegal the incitement of religious hatred in Britain passed its second reading in the House of Commons last Tuesday. It now "goes to committee" for further review and then to the House of Lords. You can read the British Government's case for it here.

This is what the bill is about, according to the Goverment website FAQ:

* The Government is extending protection to prevent hatred being stirred up against people targeted because of their religious beliefs, or lack of religious beliefs, as well as people targeted because of their race.
* This is being done through the Serious and Organised Crime and Police Bill, by expanding the existing criminal offences of incitement to racial hatred contained in the Public Order Act 1986.
* The provisions make it an offence for a person to knowingly use threatening, abusive, or insulting words or behaviour with the intention or likelihood that they will stir up hatred against a group of people based on their religious beliefs.
* It is about protecting people who might be the object of someone else�s hatred because of their religion; not about protecting religion itself.

Here are a couple of passages from this FAQ that should be underlined:

In keeping with similar legislation, the proposals do not define the meaning of religion. �Religious hatred� is defined as �hatred against a group of people defined by their religious beliefs or lack of religious belief�. Explanatory notes have been published which provide a non-exhaustive list of widely practised religions and clearly explain that the protection also covers people identified with a particular branch of a religion. They also stress that the protection of the offence covers Atheists, Humanists and Agnostics. When the circumstances are unclear, the courts will decide whether a particular group of people is protected, in the wider context of the criminal behaviour being considered. If the courts ruled that a new religious movement qualified as a religion for the purposes of the new offence, that would not prevent criticism of the practices of that movement.

And this:

The proposed and existing offences both carry a high threshold in order to protect freedom of speech. Words, behaviour or material used must be threatening, abusive or insulting and must either be intended to or likely to stir up hatred. The hatred must be aimed at people who are members of that group, not ideologies. Hatred is a strong term; which goes beyond ridicule, prejudice, dislike, contempt, anger or offence. A further safeguard in the legislation is that a person who does not intend to stir up hatred is not guilty of an offence if they did not know that their words, behaviour, written material, recording or programmes were threatening, abusive or insulting. Furthermore the offences do not apply to anything that takes place in one�s own home. All prosecutions require the consent of the Attorney General, which will prevent the offences being misused through private prosecutions. We believe the wording of the offences, the public interest test applied by the CPS, and the veto of the Attorney General are sufficient to safeguard freedom of speech.

There are some points about this proposed law which I would like to make. I'm not the first to make any of them, but they are worth belaboring.

First, there is no need for it. There are already laws that protect people from religious persecution (i.e., violence against one's person or property, or threats of or incitement of others to violence). People do not need to be protected from having someone hate their religion or express that hatred in words that fall short of threat of or incitement to violence. Sticks and stones, etc.

Second, even if this law results in only a few prosecutions (and I'll believe that when I see it), it will have a chilling effect on free speech. People will censor themselves when talking about religion, which is not good. It will push actual religious hatred underground without diminishing it, and at the same time will stifle legitimate debate about religious issues. In both cases, problems that might benefit from open discussion will fester rather than having a chance to come to any resolution.

Third, ultimately the legislation assumes, indeed requires, the goodwill of the government. The term "religion" is explicitly not defined, and probably couldn't be defined for a purpose like this. That means there's never any way to be quite sure what the law is about. The Attorney General is given tremendous latitude, and therefore tremendous power, to interpret this law, since no one actually knows what it means. It may be that this power will be used wisely and justly. But it may not be, even in the short term. Once the government has the power, it can do whatever it wants with it, whatever promises it may have made. It is not unheard-of for politicians to break their promises. And in the long run, there is serious danger that mission creep and growing distance from its original context will lead to this law being misused to criminalize legitimate free speech.

There is a larger problem here that should be mentioned: the danger of "positive rights." The point of the Bill of Rights of the American Constitution is to lay out a broad range of areas in which the government does not have the right to interfere in the life of the individual. These are "negative rights" and they are the foundation of any free society. Positive rights, that is rights to particular things which the government has to enforce, are necessary in some cases (see above for examples), but are carry serious risks of abuse and need to be strictly circumscribed. The "rights" to, say, education or "access to placement services" or -- the issue in question here -- freedom from hatred being directed toward your religion by other citizens (again, short of violence or threat of/incitement to violence) increase the power of government to interfere with individuals and the last in particular increases it in an open-ended, unpredictable and uncontrollable way. The preoccupation with positive rights is a central failing of EU legislation and is one of the problems with the (now hopefully defunct) European Constitution and one of the reasons it was the size of a telephone directory.

Obviously, this legislation against inciting religious hatred could have profound implications for academics who specialize in religion and for bloggers who write about it. If the law passes, it can scarcely be doubted that there will be people who test it by trying to bring charges against others even on specious or frivolous grounds, and it is scant comfort that the Sword of Damocles will be restrained only by the thread of the Attorney General's goodwill and good sense.

This is no way to govern. We can only hope that the mounting backlash against this bill will stop it before it is made into law.

UPDATE: Greetings Daily Dish readers. While you're here, please have a look at the "Memorable PaleoJudaica Posts" link and my recent article "Assimilated to the Blogosphere: Blogging Ancient Judaism."

UPDATE (28 June): Here's a concrete example of what such laws lead to.

UPDATE (3 July): Welcome also to readers of Britblog #20.