Why Britain needs a First Amendment

We used to have blasphemy codes — now we have two sets of blasphemy codes

Blasphemy has always been a serious business. In the ancient world impiety was considered a worse crime than murder, and those in ancient Greece convicted of asebeia could expect the death sentence. That seems bizarre to those of us infused with what Trotsky called ‘papist-Quaker babble about the sanctity of human life’, but to the ancient mind it made perfect sense: killing was one thing, but to undermine the city’s sacred values was altogether far more dangerous. Were that allowed, who knows what horror might be unleashed?

Christian Europe had blasphemy laws, too, but they began to fade with the slow and gradual separation of sectarianism from politics after the Thirty Years’ War. Thomas Aitkenhead, aged just 20, was the last person to be executed for the crime in Britain, back in 1697 (this was in Scotland, eighty years after the last case in England). Aitkenhead had ‘scoffed at the incarnation of Christ’ and said the Bible was full of ‘madness, nonsense, and contradictions’, and that was it for him; in those days you were ‘cancelled’ with rope.

The last person jailed for blasphemy in Britain was the ironically named John William Gott, who got nine months hard labour in 1921 for a pamphlet comparing Jesus to a circus clown, his fourth such offence. 

But the end was in sight with the Gay News blasphemy trial of 1977, which came about after morality campaigner Mary Whitehouse took the publication to court for publishing a poem about a Roman centurion having sex with Jesus. Whitehouse won, but the case went to appeal and one of the judges concluded that blasphemy laws protecting Christianity were outdated and should cover all religious beliefs.

Those comments turned out to be significant. Although blasphemy would be formally abolished in 2008, under Tony Blair’s in-some-ways-socially-liberal New Labour government, hate speech laws were introduced which effectively came to have the same effect, in particular the Communications Act (2003). These made it an offence to cause ‘distress or alarm’ to someone on account of their racial, religious or sexual background, even beyond established laws against incitement.

Today, Britain in effect has two sets of blasphemy laws. There is a de facto  law protecting Islam, illustrated by the recent removal of a film depicting Mohammed. And there are the more official hate speech laws protecting people’s identities, which are treated with almost comically-absurd harshness by the courts, like with the ancient crime of asebeia.

Just this week an ex-police officer was jailed for 20 weeks over racist messages sent to a WhatsApp group. James Watts had sent 10 offensive memes during May and June 2020, ‘including one featuring a white dog wearing Ku Klux Klan clothing and another showing a kneeling mat with [George] Floyd’s face printed on it.’

The magistrate told him that ‘The hostility that you demonstrated on the basis of race makes this offending so serious that I cannot deal with it by a community penalty or a fine. A message must go out and that message can only go out through an immediate sentence of imprisonment.’

Well, that message has certainly been sent out.

To illustrate how jarring this sentence is with the usual standards of British justice, just a fortnight ago two men in Lancashire were spared prison after putting a complete stranger in intensive care for no reason.

The Watts ruling is not an isolated incident. A teenager who sent a racist tweet to Marcus Rashford was given six weeks in jail, a quite extraordinarily harsh sentence in a country where violent offenders regularly avoid prison. In contrast a young man the same age who set fire to the flag on the Cenotaph avoided jail. What does society consider sacred — racial identity, or the sacrifice of young men dying for their country? The judiciary have clearly given their answer.

The people imprisoned for these offences do not exactly elicit sympathy. The same goes for the man who made a horrible Grenfell joke, the man behind the Nazi pug case, or the man who tweeted that Capt Tom Moore would burn in hell. But are they prosecuted because they’re genuinely disrupting public order – equivalent to screaming and shouting abuse on a bus – or threatening anyone? Or because they offend sacred values?

The fact that police often bother people because of their supposedly ‘offensive’ comments quite strongly suggests the latter. Unlike the two men jailed for racist communications, the women interviewed by police officers over ‘transphobia’ weren’t making tasteless jokes or trying to offend or upset anyone. They were merely people expressing their opinion, which the prevailing moral order of the day regards as offensive. It is blasphemy, in other words.

Revolutionaries who storm Bastilles famously build Bastilles of their own. In the case of Tsarist Russia’s Peter and Paul Fortress, where so many Bolsheviks enjoyed a spell under the old regime, conditions were famously far worse under the new order. ‘Whereas before there had been one man to a cell,’ Orlando Figes wrote, ‘there were now two or three; and women were imprisoned there for the first time… Four men shared each tiny cell... Compared to this the old prison regime in the fortress had been like a holiday camp.’ 

As with so many revolutions, the West’s recent cultural upheaval has not led to unfettered freedom but in some cases has seen the oppression of the old order turned towards different targets, but with greater intensity.

The great injustice of blasphemy codes is that they often appear so arbitrary, because feelings of offence are random and irrational, entirely dependent on the moment. Just as in Middle Eastern regimes where ‘offensive’ cartoons might appear without comment and suddenly trigger a riot six months later, one person might make an offensive comment without notice, while another will find the police on his doorstep. To make matters worse, these laws often appear to target the unintelligent and naïve, who lack the nous to know which way the prevailing wind is at that moment, and where the line is drawn.

There is definitely a place for strong social pressure on people’s behaviour and language. Public order issues should be firmly dealt with by police, but these cases – and the extreme and disproportionate nature of the sentencing – suggest that this is not what is being punished. The authorities wish to crush the people offending society’s moral values.

Britain is in a particularly unfortunate position because we tend to import wholesale American ideas, without the free speech protections that are part of their tradition. As Sam Ashworth-Hayes recently wrote in the Spectator, people in this country tend to assume we have freedom of speech enshrined in law, when we don’t, and never really have done outside of convention.

The United States of America has the First Amendment not because the great men behind that country’s foundation were naïve believers in human goodness, but because they knew the essential intolerance of our nature. America was a collection of different sects and, given the chance, all sects and belief systems try to strangle their rivals. 

The First Amendment, along with other protections, was there to prevent that happening, but it was helped by the country’s huge diversity of religious congregations which ensured none would dominate the others. Today, however, America’s Blue Tribe has almost unstoppable cultural power, and is infused with a religious enthusiasm and a determination that everyone in the Western world must share the benefits of its new gospel.

Britain’s elite institutions are in thrall to this new belief system, and imitate America’s elite fanaticism without enjoying the country’s legal protections. If there’s one American import we really could do with today, it’s a First Amendment.