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Cameron v Churchill

The European Convention on Human Rights was intended to enshrine the UN Universal Declaration of Human Rights in law for Europe. The UN UDHR was passed by the UN General Assembly in December 1948 as a response to the horrors of the second world war.

In no small part, the ECHR was pushed for by a fellow called Winston Churchill, who said:

"In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law. It is impossible to separate economics and defence from the general political structure. Mutual aid in the economic field and joint military defence must inevitably be accompanied step by step with a parallel policy of closer political unity. It is said with truth that this involves some sacrifice or merger of national sovereignty. But it is also possible and not less agreeable to regard it as the gradual assumption by all the nations concerned of that larger sovereignty which can alone protect their diverse and distinctive customs and characteristics and their national traditions all of which under totalitarian systems, whether Nazi, Fascist, or Communist, would certainly be blotted out for ever."

So. Conservative-in-name Prime Minister David Cameron today promised to repeal the Human Rights Act, the legislation enshrining in UK law a chunk of supranational legislation put in place by notable former Conservative prime minister Winston Churchill as an anti-totalitarian measure.

Coinciding with Home Secretary Theresa May's attempt at reintroducing a universal surveillance regime of which the Stasi or KGB would have been proud, and her avowed desire to gag unpalatable political views from the media, you've got to wonder where all this is intended to go ...

90 Comments

1:

And 2+2=5.
Seems Eric Blair was off by three decades.

2:

Funnily enough I have a blog post called 1984+30 that I'm trying to write...

Alternatively "The Nasty Party is back"

3:

Maybe the repeal of the Human Rights Act is a provision for GB becoming the 51st state after the brexit?

4:

I appreciate the risk of feature creep, but Theresa May's speech appears to be either a "something must be done" knee-jerk response to those who preach extremism, or a "something more must be done".

The question is this: are we objecting to the aim, to the mechanism, or both?

Should we move towards a First Amendment strength of free speech, such that the bigots and the racists can preach as they wish, and lie as they will?

Or if we wish to continue prosecuting (say) BNP members who hand out fascist or racist propaganda, how should we go about it - are the existing mechanisms against incitement to violence sufficient?

5:

We have a variety of laws that restrict freedoms of speech. You've been around long enough to not be surprised that I'm opposed to the BNP, Teresa May's sounding out against those who say women are stupid and so on (I can't be bothered to get the exact quote, reading her speech will make me too angry) could be written to appeal to me.

The trouble is, just because people say things I don't like doesn't mean we shouldn't stop them saying it. I we did that, I'd have Jeremy Clarkson off the TV, I'd shut all the tabloid and all the Murdoch press down in an instant and more.

I'm not entirely convinced that hate speech as it's currently defined in law is perfect. I've seen convincing arguments that it restricts genuine freedom of speech. I've also seen, and heard, things that can loosely be characterised as speeches that skirt just inside evoking the current law to which my instant reaction is "Gosh, I wish that was illegal, why isn't that illegal?" - possibly with some swearing in there. While I don't pretend I'm the perfect arbiter of equitable law, nor any approximation to the man on the Clapham omnibus or similar, it strikes me that's probably close to the right point for such a law.

It might be that the law we've got needs tinkering around the edges to firm up some things and relax some other things to get the tricky bits right but it's basically balancing freedom of speech and the responsibility to speak like a reasonable human being. It should, for example, be noted that on the day Teresa May gave her speech about how terrible the protections on speaking out were, the guy that threatened to rape the campaigners for Jane Austen on the £10 note was sent to jail. It might not be quite what she means, but it suggests the legislation we've got doesn't fail to work.

Although we haven't seen the details, when people like the former chief advisor to the government (this government that is) on intelligence matters is saying "I don't know how you can make this legislation workable" and even Tory backbenchers (who will usually vote for anything that looks like increasing the powers of the police) are saying "How will this legislation distinguish the extremist speech?" well you have to start thinking of the Thought Police...

And, of course, the only way to reach the disaffected youth who are the avowed victims of the people she wants to ban is to tell them its forbidden. That always works so well with teens. "You can't look at that, listen to that, it's illegal!"

6:

Err, there are already the hate speech laws:

http://en.wikipedia.org/wiki/Hate_speech_laws_in_the_United_Kingdom

OTOH, if you want to ban ANY incitement of hatred, you'll have much fun, e.g. with politics (managers as a persecuted minority, right?) and any religion:

http://en.wikipedia.org/wiki/Amalek#Commandments_to_exterminate_Amalekites

Also, with Islamists and Rightists, we're already speaking about a demographic that feels marginalized in the media and exploits this somewhat, e.g. "they feel threatened by us, but they have no arguments, so they ban us". Though

a) it's funny when you read this accusations on page 1 of newspapers or listen to them on prime time, like it happened with Sarrazin in Germany.

b) any measures can be circumvented to some degree, as shown with the referenced [1] Sinn Fein ban, no broadcasting of Adams' voice, hire some voice actors instead:

http://en.wikipedia.org/wiki/1988–94_British_broadcasting_voice_restrictions#Implementation

From my personal experience with the Nazi variety of the species[2], the problem is those guys already tailor their talk to their respective audience. So usually they will talk about community and identity, and it might take some time before they start about how the community would have to get rid of some undesireables. Banning them would reinforce this, maybe even heightening support because these guys excel at the "help, help, I'm being repressed" game.

Mind you, I always wanted to do something similar to "Four Lions" with the Wiking youth, one could even do some stints into some fringe SF fandom...

[1] Dammit, I needed wiktionary to find that adjective, I'm growing old...

[2] Some might have noticed I have a hobby of dabbling into Ancient history and pre-history. And a tendency to associate with somewhat conservative nerds with debatable friends. 'nuff said, I hope...

7:

Is there a social policy objective in play?

Removing almost all Legal Aid - the pillar of the welfare state that we could call the National Justice Service - places the protection of the law beyond the means of the ordinary citizen.

In short, the law is now a service for the rich and powerful.

Enforceable Human Rights are the ultimate 'little guy' protection in law, and it protects the citizen against abuse of power by any and all; and this includes the abuse of power by the state - but I would emphasise that any gross abuse of power, including those perpetrated by companies and wealthy individuals, can be challenged.

So reducing or removing this protection is, for a neoliberal (or a 'Tory', in the old sense of an aristocrat who uses politics to protect property, monopolies, and privilege) , a valid policy objective.

The wealthy can still afford recourse to law; and the powerful, by definition, do not need protection from their state.

8:

Your prime Minister's rationalization might run something like "Winston Churchill associated with known raving socialist FDR, therefore not a real conservative and all his works suspect".

9:

I'd suggest the problem with the Human Rights act is not the act itself, but the boneheaded way the legal profession have chosen to implement it.

Rather than recognise there is a sensible balance to be drawn between the rights of the individual and the rights of society - they have chosen to do their usual thing of looking at words rather than intent and coming up with the wrong answer.

That then gives lowlives like May the opportunity to look to 'reform' those laws in directions that remove fundamental rights from everyone ("sure we can remove your passport, and therefore ability to live and travel, in the name of da terrorism"). In essence it's advantageous to them to not fix the real problem - which is pretty much their reaction to 'terrorism' itself.

And on a side note; have people realised that anyone that goes into the Home Office gets perverted into an authoritarian, freedom hating, arsehole within a year of taking up the job? There's something in the water in that building ...

10:

Can't fin the link right now, my google-fu is caffeine-deprived but actually the legal aid reforms were thrown out of court last week or the week before after judicial review. IIRC the judge ruled that the consultation procedure was incompetent to the point of negligence or some such form of words.

11:

I'm not sure I quite agree about the "boneheaded way" but I do think it's a matter of implementation.

I'm not enough of a lawyer to know for sure but I don't think that the ECHR does anything beyond the UN Declaration on Human Rights in terms of the actual rights it grants us. It simply lays down how those rights are protected, what the legal processes are and the courts to which we can appeal if we think we've had our rights denied and so on.

If I'm right on that, then Callmedave's brilliant new British Bill of Human Rights can't credibly grant us any fewer rights, what it will do is pull the final arbitration back from the ECHR to a UK court. Far be it from me to challenge Churchill on the implications of that for building and/or denying totalitarian states (it just makes sense - but then May's statement about thought crime, even tighter controls on what you're allowed to say because it offends her sounds exactly like something we protested against when the USSR did it and we do protest against when the PRC does it. We call it censorship.) but in the short term it's not going to actually deny us any human rights.

It's going to play well in the media, with their hyperbolic stories about "Migrant couldn't be deported because of his pet cat and it breached his human rights" and the like. Actually the UK has a pretty good record when it goes to the ECHR - it loses about 3% of cases, lower than just about anyone else. (If you believe the media, you might think we lose every case.). There's a decent chance, despite the rhetoric, that the majority of the cases we lose at the ECHR we'd still lose. Other courts look at a balance of things. Any ultimate court of human rights is only going to consider the human rights.

For example, would Abu Qatada still have been deported the first time we tried and the EHCR denied the UK Government? Quite probably. If Callmedave's British Bill of Human rights doesn't include a right to a fair trial and a right to not be tortured and a right to trial that doesn't include evidence not obtained by torture it will be laughed out of court on judicial review. The next time? The UK court that agreed to the extradition didn't look solely at that, an UK court of human rights would. And as lawyers are fond of saying, if you put two lawyers in a room you'll get at least two different opinions on any legal matter.

He's playing to the crowd, in the case to the foaming media that demand harder and harder punishments and ignore any evidence to the contrary about their effectiveness. The Tory Party faithful lap it up pretty much too. Ken Clarke, presumably knowing he was going to retire at the end of this parliament, dared to speak out and say things other than prison deserved examination. He never actually did anything about it though. That would have been a step too far.

As for Home Secretaries becoming perverted, I wonder how many of them have the predisposition anyway, that's why they get the job? Even more than your normal near-the-top politician's desire to boss people around, Home Secretaries (and their shadows) probably have a control/authoritarian streak if they're going to be any good in charge of the police and so on. But if you're surrounded all your working day by police, spooks and the like telling you how crap it is, how dangerous it is, what new powers you really need to make it better, to sort it out, to protect the country... How long before you succumb to the group-think? Less than a year by your observation!

12:

And, as you say, if you really, really wanted to make sure the whole thing collapses, you simply prosecute all the "churches" & all the "mosques" for disseminating hatred, based simply & obviusly on the words printed in their holy books.
Somehow, though it's a pity, I can't see that happening

13:

I'd suggest the problem with the Human Rights act is not the act itself, but the boneheaded way the legal profession have chosen to implement it.

Precisely.

The French don't seem to be ahving these problems with their islamists (etc) do they?
Somoene, somehwere has lost the plot & another group - the real right-wingers behind Camron are using this as an excuse.

I've seen it said that "All home secretaries, if they stay in the job long enough, become raving fascists".
It's notable that W S CHurchill, who gained a reputation as a "reforming" HS, abandoned the job, to becom First Lord of the Admiralty, before the thugs got hold of his brain ....

14:

I agree with Ian S. on this one; the ECHR isn't really a problem, nor is the idea behind the Human Rights Act. The fault lies in the implementation of the law, and indeed the way that the law has been written which allows several different views to be taken on the meaning of the law.

The dog-whistle politics at play here is the various cases of broken individuals such as a Somali, convicted of rape and sentenced to deportation who argued that as he had fathered children in the UK, his right to a family life trumped the right of the Home Office to deport a dangerous criminal. Similarly the implementation of the convention on refugees is also being creatively applied; the actual treaty states that anyone who, having escaped a repressive regime, does not stop in the first safe country they enter may be considered not a political refugee but an economic migrant and treated accordingly.

Creative use of the Human Right Act to subvert this original intent is what has led us to this position. What has also led us here is a hell of a lot of political bloody stupidity from all parties and regimes; the Tories tend to right-wing free market extreme solutions, the Lib-Dems to idealism and Labour to simply churning out lots and lots and lots of rules willy nilly.

One of the BSD projects is currently going through much of their code to eliminate duplications and to reduce the size of the codebase, on the not unreasonable basis that the smaller the codebase, the fewer places bugs have to hide. A similar process is long overdue for British Law.

15:

And on a side note; have people realised that anyone that goes into the Home Office gets perverted into an authoritarian, freedom hating, arsehole within a year of taking up the job? There's something in the water in that building ...

Yup. See also "The Annihilation Score", due in print in July 2015 (Laundry Filess #6: it's the Laundry/Home Office intersection novel -- with superheroes).

16:

Even more than your normal near-the-top politician's desire to boss people around, Home Secretaries (and their shadows) probably have a control/authoritarian streak if they're going to be any good in charge of the police and so on.

The only counter-example I can think of was Roy Jenkins -- who, during his '65-67 stint as HomeSec, suspended/abolished the death penalty, and strongly supported decriminalizing homosexuality and abortion. An instinctive reformer, he also served as HomeSec again in 74-76 (coincidentally a period when the more excessive and oppressive policing in NI ramped down slightly).

You have to go back 40 years to find a Home Secretary who isn't essentially a raving fascist. Hmm.

17:

It's notable that W S CHurchill, who gained a reputation as a "reforming" HS, abandoned the job, to becom First Lord of the Admiralty, before the thugs got hold of his brain ....

This would be the WS Churchill who entered the Home Office full of enthusiasm for neutering the mentally subnormal and had to be talked out of it by the Home Office civil servants,then?

(Thereafter, to be fair, he turned into an opponent of eugenics. But "reforming"? Not necessarily in a good way ...)

18:

The only illegal "speech" should be that which is a direct incitement to violence.

19:

I don't really have personal memories of Roy Jenkins... like you I was 10 or 11 when he came to the end of his second period at the Home Office. Intellectually I know he did those things, and you may well be right that he's a great and solitary counter-example. I suspect, before both our time, the Home Secretaries around the time we (as a nation) were dismantling National Service might have been too.

If you think of the politicians who have led the charge on equalising things, women's rights, gay rights and the like, in recent times they've been PMs. Of course they've balanced that in recent times with crusades against privacy, choice and the like.

20:

The only illegal "speech" should be that which is a direct incitement to violence.

Sure. I agree 100%. Now define "direct", "incitement", and "violence". Gets complicated, doesn't it?

I mean, I think everyone would agree that if I took a megaphone, went up on Calton hill, and started shouting that Moazzam Beg was the spawn of the devil and we should grab pitch-forks and stakes and burn him as a witch in the Grassmarket, a few eyebrows might be raised and by and by the police might come and have a word with me, right? (Because I'm calling for the lynching of a named individual.)

But. Suppose I organize an EDL march through Oldham, and once it's under way grab a megaphone, and start shouting "death to muslims!" ... Is that direct incitement? After all, I'm describing a group, not an individual.

And what if I'm shouting "those sort of people should go home!" At a bunch of neo-Nazi idiots with half-bricks in hand? I'm not explicitly calling for violence, but I'm ramping up the rhetoric in front of an inflamed mob in an area where they're likely to encounter the implied targets of my denunciation, because even though I'm not saying "muslims" everyone present understands that to be the context of "those sort of people". Is that incitement?

Hint: the devil is always in the details.

21:

I don't think the current legal and media uproar restrictions on speech are achieving their stated aims, because fine distinctions are being lost when the restrictions percolate down to everyday speech. The main observable effect is that some "bad words" are now enough to destroy the careers of media workers and damage the careers of footballers. I was in a position to observe "lad culture" for some months and they seemed to believe that some topics were now off limit, regardless of what was being said about them. I think we are losing the safeguard of free speech airing topics and alerting the elite when the masses diverge from them, without gaining any increase in social stability or cohesion. This is at least consistent with observations made about the Rochdale grooming scandal.

22:

Obviously I can't absolutely vouch for the veracity, but Jack of Kent is usually right about these things and has leaked a summary of the proposed British Bill of Rights legislation.

Depending on your POV read it and weep, laugh or rub your hands and cackle in a suitably evil and manic fashion.

23:

Thanks to a completely different story about a different aspect of Chris Grayling failing to actually consult properly on dismantling legal aid, I found the one my google-fu wasn't up to finding before coffee this morning.

Normally Lord Chancellors do a pretty good job of this sort of thing... this mob seem to have found one that's more barking and authoritarian than their Home Secretary!

24:

think we are losing the safeguard of free speech...

I'm always wary of things that look like "political correctness gone mad", in the same skeptical way that I regard "'Ealth 'n'Safety gorn mad, innit?" (the lazy person's justification for any petty ruling).

The more strident media (e.g. Daily Heil) will always want a drum to bang, this is one such. The more incompetent or less intelligent can use them to justify an arbitrary guideline or judgement.

Yes, words can be twisted - but I can't think of a media or sports career damaged by an correct and considerately aired opinion. Ignorant and bigoted comments, yes, and quite right too. (Fox News and comments about female fighter pilots apply here).

I wonder whether Rochdale and Rotherham had deeper problems, namely a pre-existing culture of abuse and wilful ignorance of same (e.g. Cyril Smith, Savile) that had nothing to do with race and everything to do with "not rocking the boat", and just not believing the children concerned. IMHO a lot more was down to sheer laziness and incompetence, than fear of accusations of racism.

25:

Trouble is with you so-called liberals is that you make outrageous black & white assumptions; the only alternative to being in the EC is a protectionist iron curtain between an isolated Britain and the EU, whereas in fact most of us anti-EUers actually want a common market version of trade and co-operation; abolish Human Rights Act means the only alternative is having no human rights at all, whereas Cameron wants human rights legislation that is more balanced, where the right of a sovereign parliament to make decisions like no votes for prisoners is not outweighed by faceless and nameless unelected politician-lawyers in continental Europe. What people want is a more reasonable and equitable approach to human rights, that's all. Coming out of the EU could actually mean a healthier and stronger tie to Europe for the British and abolishing the Human Rights Act could mean better and more just human rights for the British. I can tell you right now that Churchill would NOT be a supporter of the Human Rights Act in its current form

26:

Talking of blunt instruments, would anybody like to analyse the Banksy mural at the top of http://www.bbc.co.uk/news/uk-england-essex-29446232? Apparently it has been destroyed as racist. I see a load of pigeons looking very stupid, because they are protesting against a swallow, which is not in fact in competition with them, and which is generally thought to be a welcome feature of the British summer. The phrase "sense of humour failure" comes to mind.

27:

David Cameron said some strange things at the recent Tory party conference. He launched into an expletive-laden rant , check here:
https://www.youtube.com/watch?v=0YBumQHPAeU

28:

IIRC tried to reduce the number held in jails, with some small success, at the Tonypandy riots, stopped troops from going past Cardiff (contra to popular legend) and proposed a referendum on female suffrage, but was over-ruled by Asquith ....

29:

I saw the thing yesterday. It was reported as racist graffiti. On that basis I can see why the council removed it - and I can see how someone can take offence to it too.

If I'd seen it in Private Eye, I'd probably have laughed, but I can see, to mix metaphors a moment, a mixed reaction if you told it to a live audience.

And although it's not quite the same as Private Eye being taken to court for defamation, if you give us satirical art, some will find it funny, some will find it offensive, no? If the art is graffiti, even a Banksy graffito then it's at risk of being removed.

30:

El @ #23, Martin @ #25
There is fall-out among the tories, too.
Dominic Greive (Ex HS/Chancellor) is openly contemptuous of the current proposals.

It is also obvious that some "creative" lawyers have stirred it up, leading to the Daily Nazi's rage.
It OUGHT to be possible to sort this, without withdrawing.
Perhaps a new set of guidance notes, backed by Parliament?
Unfortunately, as Martin sarcastically points out, opinions have become dangerously polarised on a very very delicate & difficult subject.

31:

It's not only us lefty types. The most recently sacked conservative Attorney General, Dominic Greive among a number of Tory backbenchers who number on the "awkward squad" and pretty strongly Euro-sceptic and anti-EU who are speaking out against this.

You might trust the current mob, assuming they get elected for another term, not to do anything daft and outrageous. I'm less sanguine, they're already doing plenty of outrageous things.

I think legislation that basically says "We don't like you, so we're going to remove your human rights to get rid of you" is fundamentally missing the point of human rights. They're there to protect people against totalitarian governments and they apply to ALL humans, especially the ones we don't like. It's no challenge to give human rights to people that don't do naughty things and to people we like. It's a measure of whether we're civilised as a society how we as a society treat the people we don't like and that don't like us. That's not saying we can't punish them, can't deport them and so on. But we have to do so properly and reasonably, with due process and due regard for their rights.

The votes for prisoners issue is a classic of that. The UNDHR says there is a universal human right to vote. (It's not just ECHR, they're just the one implementing the decision of a declaration we signed up to support.) Westminster has decided that prisoners, all prisoners, deserve punishment to the extent that they no longer deserve that basic human right. If punishment was the sole purpose of prison I might not have a problem with that, although there are still some issues*. But prison is also about rehabilitating prisoners, reintegrating them into society. Supposedly (albeit risibly in the face of the evidence) in the hope they will learn their lesson and not reoffend. Without giving the most serious offenders the vote, why not give those serving less than 2.5 years (half the life of a parliament now) or with less than 2.5 years remaining before their likely parole date and with a good record (and thus likely to receive parole) the vote as part of the process of reintegrating them into society. They will, after all, be at large in society for half the life of the parliament and directly affect as every other citizen. Ah yes, I'll tell you why. Not because it's a classic British fudge, we're good at those after all. But because the frothing media demands "Crime and punishment" above all, even when the system clearly doesn't actually serve the purpose for which it's intended and any evidence for alternative systems that reduce recidivism and reoffending rates and the like is swept aside in howls of outrage by any minor offence perpetrated by someone who *could* have been in prison.

* There are issues where there is a choice between paying a fine and a term in prison as the punishment available. Rich people should not have better human rights than poorer people just because they can afford to pay the fine but a law that insists anyone in prison cannot vote says they do. I would certainly say that for offences where there is an range of punishments and jail time is the top end of that range, loss of voting rights should not be included in the jail time for those prisoners, or perhaps it should be at the discretion of the judge for serial offenders.

32:

That's a rather solidly binary mode of thought there, mixed in with the rest. You're treating "liberals" as a single cohesive thing, even as you claim to be more subtle.

The trouble is that successive Westminster governments seem to be well infested with the "politician-lawyer" types. What's really screwed us has been the loss of opposition and argument within Parliament. If anything, the EU has become the de facto Loyal Opposition, and they're not very good at it.

And what really scares the Westminster crowd is the idea of somebody else controlling a flow of money. All this has the same motives as Council Tax. They took the income from commercial property out of control of the Councils. As the real lawyers are pointing out, the HRA document, published today, is mostly meaningless. And it's nothing to do with the EU. It's just frothy camouflage for an attempt to grab back control of the money.

I used to work in an industry that depended on EU money. None of it stuck in the industry—it was sucked out every year by the same greedy financial-services bastards as are screwing the country now. Corporate profit and tax avoidance have been messing up the assumptions of Keynes since the 70s. The only places Westminster seems able to supply money to are the builders of iPhones and luxury yachts. The money vanishes, stops circulating. The statistics used for our GDP have started including the black markets. The national credit rating has dropped, but our Glorious Leaders say nothing.

We need somebody who is willing to be an opposition. Right now, that looks to be the EU.

33:

Boris Rheinhart: YELLOW CARD WARNING.

Read the moderation policy before you post here again. In particular note that "us vs. them" adversarial rhetoric is strongly discouraged and future lapses will get your comments deleted and your user ID banned.

Have a nice day!

34:

With the Scottish thing settled, it seems Cameron is right on track to the most important part of his agenda.

"Dont leave us and vote UKIP, we can be as much of a right wing nutcase full of hatred and idiocy! We listen to our clients and if you want bullshit, we can provide all you can eat!"

35:

"Sure. I agree 100%. Now define "direct", "incitement", and "violence". Gets complicated, doesn't it?"

Not really.
"Violence" means unlawful physical attack or physical contact

"Incitement" means encouraging others to undertake a specific action or class of actions.

"Direct" means an unambiguous targeting

So "deport all those pedo XXX because they are all scum" does not fall under that heading.

Neither does the use of euphemisms eg "All those XXX should be "taken care off" with "extreme prejudice""

Neither does "I believe all XXX should be killed" - no incitement

36:

Ahem: the Scottish thing isn't settled -- it's now a ticking bomb. However the timer is sufficiently long that the party leaders can afford to ignore it until after the general election next June. What they decide to do about it then will have huge consequences in the long term, though. See also the Government of Ireland Act (1914). If it hadn't been deferred due to an emergency (admittedly, the emergency in question was the First World War, so I'll give them a pass on it being a no-shit emergency), Ireland would in principle have received a devolved government by about 1916, with huge historic consequences for the pressure for independence (including the chance to have avoided a nasty civil war).

Your case about Cameron's main agenda stands, I'm afraid.

37:

I think you'll find your definition of "violence" doesn't cover many cases that are prosecuted in law as "assault". (You can assault someone by placing them in immediate fear of violence, even if you don't actually touch them -- pointing a gun at them, for example, or threatening them with a raised fist.)

And by your definition of incitement, Hitler would be found "not guilty" if accused of inciting genocide against Jews, Slavs, homosexuals, Communists, etcetera ...

38:

Oh yes, "settled", as you say. As long as the bomb explodes in somebody else face, fine by him.

Even if Scotland would be free from this madness about repealing the HRA, I kinda wonder how this would have played in the referendum.

39:

Well, I limit my definition to actual physical violence. Not fear, not hurt feeling, not being offended etc. Ah... Hitler. Well, if he did not actually directly incite that beyond reasonable doubt then "not guilty" it is.

Of course, you can criticize my choice of definitions by providing counter examples that you think *ought* to be prosecuted under Hate Speech laws, in which case our opinions of the limits of Free Speech differ.

40:

If I understand you correctly then, since you're being strict, literal and pedantic on these issues, it's ok to defame people because it's just freedom of speech in action? After all, that's not inciting physical violence.

On a more technical note, within the hate speech definition. Lets say you suddenly start inciting people to kill all lesbians. Being out and proud and pretty easy to pick out as a lesbian and thus an obvious target I run (well hobble rapidly) away. I'm not actually harmed because I reacted in fear for my safety. Suddenly you can't be prosecuted under your law because I did the smart thing to preserve my safety. Are you sure you really want a law that says that? (Obviously you would in such a case, because it would you don't go to jail, but in general?)

There is a reason assault laws in the UK cover threatening behaviour that put the person in fear of injury, and that the hate speech laws do too.

I'll vote not to move to Dirk's world, sorry.

41:

a) Defamation and libel laws are something different
b) It is about the illegality of incitement to violence so in the case you cited it would be a criminal act. If it had been incitement to scream abuse at you in the street, that would be legal

42:

re b) Ok, I'm less opposed to living in Dirk's world - it just didn't seem to be what you were saying.

Screaming abuse I'm not sure about. I'm old enough that an abbreviated form of Pakistani was used, almost universally by the white majority. I'm sure as a child if I'd seen anyone from India, Pakistan, Sri Lanka or Bangladesh or of such descent I'd have used it without thought, without hatred or animosity - and it quite possibly would have been taken that way because the tone of voice would have conveyed such a lack of animosity.

Nowadays it's a four-letter word, with all those connotations, a short-hand for hatred, prejudice and all the rest of it. There are obvious other ones, but I've just been stood chatting to a charming Indian woman in the queue at the supermarket checkout, so it occurred most instantly to me.

I'm just curious why one's right to freedom of speech supersedes everyone else's right to a peaceful life without being abused? You're clearing saying it does after all.

re a) Yes, I agree defamation laws are different. But you're claiming freedom of speech without any seeming limit or responsibility for what is said is sacrosanct about a whole of host things, such as my right to pass by without being insulted (but less important than my right to pass without being assaulted). I'm curious why my right to maintain my reputation is more important than your right to freedom of speech.

43:

Dirk, (trying politely) -- please shut up.

You've veered off-topic onto one of your own hobby-horses. As it's not a particularly interesting hobby horse to the rest of us, either (a) bring it back to the proposal to abolish the Human Rights Act, or (b) stop it.

44:

Re: Dominic Greive
See HERE for more info.

In other words, it's peurile rubbish, playing to the Daily Nazi gallery.
At the moment - watch this space, though.

45:

A viable alternative would be to spell out what particular Rights are forfeit under what conditions. For example, the "Right to a family life" is overridden when a person is imprisoned for a crime. Similarly, it could be extended to apply to any non citizen in perpetuity within the UK i.e. it is not an argument against their deportation.

Also, those Rights can only be taken into consideration within UK jurisdiction. What may happen outside of it should not be taken into account. So, Right to a fair trial etc would only apply within the UK and again could not be considered as an argument against deportation since the presumed unfair trial is none of our business.

There are no shortage of ways of getting rid of people we don't like.

46:

There are no shortage of ways of getting rid of people we don't like.

People like you who apparently don't mind ignoring the rights of those who you don't like (explicit point here being that they are foreign) are exactly why this move by the conservatives is so worrying.

47:

I have no problem at all deporting criminals, asylum seekers who arrive via a safe country (eg France) and general political undesirables. By its very nature, citizenship confers Rights that foreign nationals should not have. The only inalienable Right IMHO being the Right to leave, which is why I oppose the practice of removing citizens passports as a punitive measure.

48:

general political undesirables

Define "general political undesirables"?

Here's a hint: the point of human rights is not to define the rights of good guys; it's to define the basic minima which we observe even in respect of people we don't, ahem, respect.

(Strong hint: you might want to go look into A Theory of Justice by Rawls. The acid test for whether a system of justice works being, if you were wrongly accused of a crime, would you consider the system to which you were subjected one that treated you fairly? Systems that allow for the arbitrary elimination/expulsion of "people we don't like"/"people who aren't like us" are almost by definition unjust ...)

49:

I wasn't holding out high hopes, but I didn't expect an endorsement of the resumption of transportation.

50:

Define "general political undesirables"?

Anyone non-citizen the government decides should no longer reside here, for any reason. Right of residence is not something a non-citizen should expect as a Right. The point being, they are a citizen of another nation.

51:

The point being, they are a citizen of another nation.

Nope, wrong. Plenty of folks are de facto stateless (have citizenship of a nation they can have nothing to do with -- consider German Jews circa 1933-45) or de jure stateless (country no longer exists, or residents of non-nation areas such as the Gaza Strip).

Basically you're assuming that everybody is a citizen of a nation that will defend their basic rights, so we don't need to observe their rights. This is bullshit; self-serving, hypocritical, and extremely unpleasant.

Take it elsewhere, Dirk; you disgust me.

52:

I'm back to not wanting to live in Dirk world again.

Any non-citizen for any reason? So "We're going to deport you and we don't care that you'll be shot for being ..." whatever. Or, to choose a recent one "We don't like you, we wouldn't try you in this country with the pile of crap evidence obtained by torture, but wtf, bugger off and face a trial, we don't care."

If we as a society believe that humans have a right to life, a right to a fair trial, a right to be tried in a place where evidence is not obtained by torture, and heck a right to a family life and all the other ones, then that applies for foreign humans too.

You clearly don't believe in universal human rights. You're happy for the government to have a lot of rights over people. Like I said, I'll vote no to living in Dirk's world thanks.

53:

Rights are a social construct arising from competing power blocks within societies. There are no "universal human rights" beyond what particular societies care to create for themselves or impose on others.

54:

Well, you might want to consider the fact that the UN declaration of rights attempted to establish these basic rights as global and universal, and effectively defined "crimes against humanity" as internationally recognized crimes committed in the breach of those rights.

To that extent, the society that created them are global; if you want a country that doesn't observe them, you want a pariah state. (Why don't you go live in ISIS? They seem to be more in line with your preferences.)

55:

"Why don't you go live in ISIS? They seem to be more in line with your preferences."

I'm surprised at you stooping to such an ad hominem reply.

56:

The Universal Declaration of Human Rights

You don't adhere to the minimums described it and any state you ran would obviously not but if you'd care to follow the link and call the UN liars...

57:

And water is dihydrogen monoxide, and excited molecules are warmer.

Your retort is trite, adds nothing to the conversation, and does not, despite what you seem to think, mark you as having deep insight into the political process.

Now, please, I am not trying to jump on you; you did, however, make a very offensive comment -- and one that is particularly frightening to those of us with certain events still in our familial history. And it appears to be your be your political belief. Which you are welcome to.

But Charlie has indicated he doesn't want you to have express it here.

58:

"But Charlie has indicated he doesn't want you to have express it here."

Has he? So no discussion of the nature of Rights and their limitations that do not toe the party line?

59:

Dirk, you're pissing me off. Yellow card. Keep it up and you'll be banned from this thread.

Hint: re-read the moderation policy. This is not your soapbox: it's mine.

60:
The French don't seem to be ahving these problems with their islamists (etc) do they? Somoene, somehwere has lost the plot & another group - the real right-wingers behind Camron are using this as an excuse. (13)

The French do not consider free speech to be an absolute right: it is balanced against "general interest". That might sound like anathema to Anglo-Saxon ears, but it's just the good old "shouting fire in a crowed theatre" argument that you do have in Anglo-Saxon legal tradition as well. In continental Europe, this argument is cranked up to 7 or 8 (certainly not to 11) becase, you know, the Second World War happened in out countries (the Blitz was horrible, but remember it's relatively quaint compared to having your entire country turned to rubble, your population martyrised by armed thugs, and half your population turning against the other one).

France enacted a simultaneously strong and half-arsed system of repression after the Liberation, because there was basically a civil war brewing between the nationalist Resistants, the Stalinian Communists and the former Collaborateurs. A three-way civil war with shifting alliances was not De Gaulle's idea of relaxing after a Nazi occupation, so the new government had a few obnoxious bastards shot (Brasillac) or humiliated an imprisoned (Pétain himself), and pushed the less obnoxious ones under the rug (Papon) because you did need administrators to run the country (that the country was in ruins did not make it easier to run).

Germany woke up after the war with the same sort of problem, compounded with the shame of the Nazi episode (De Gaulle invested enormous efforts to shield France from that effect). There too, some compromise was made about low-ranking Nazis (that would come to bit them when the next generation started to ask questions as to why it was administrated by former Nazis, see Baader-Meihof's Red Army Faction), while setting up stringent repression of the sort of sedition susceptible to lead to another Nazi regime.

Hence the ban on display of Nazi symbols (outside of legitimate settings like historical discussion) or hate speech ("talks inciting to hatred against people due to their membership, real or assumed, to a group defined by ethnicity, gender, sexual preferences,...").

61:
The only illegal "speech" should be that which is a direct incitement to violence.

Sure. I agree 100%. Now define "direct", "incitement", and "violence". Gets complicated, doesn't it?



Err... is it? That is what we have courts for: given a law, decide and solemnly pronounce whether something is off-limit or not, and how far from the limit to determin the severity of the sanction. Remember that you are talking of a Roman legal system, not common law. The system is founded upon written law and strict constructionism: the judge will apply to the law but will not interpret it, and judicial activism is anathema (writing the law is strictly the purview of the legislative and executive).

IANAL, but in your three cases, the perpetrator would likely be found guilty:


  • took a megaphone, went up on Calton hill, and started shouting that Moazzam Beg was the spawn of the devil: inciting a crime against an individual with the aggravating circumstances that it was motivated by racism;
  • organize an EDL march through Oldham, and once it's under way grab a megaphone, and start shouting "death to muslims!": inciting religious hatred
  • shouting "those sort of people should go home!" At a bunch of neo-Nazi idiots with half-bricks in hand?: inciting religious hatred. Depending on the aftermath, the perpetrator could be found accessory to the crimes committed by the bunch of neo-Nazi idiots.

To give you a real-life example, look up the "Auvergnat" incident involving Brice Hortefeux. Commenting on a UMP militant of Arabic origin, Hortefeux said "We always need one! When there is only one, it's okay. It's when there are many that problems begin"; challenged on that line, he said that he was referring to Auvergnats, not to Arabs. The court basically said that being a hypocritical asshole was still being a asshole, and fined him.

I understand why these things make British very nervous, and you are right that in the Common law system this would be a receip for abuse. But the Roman system does not work in the same manner, and while it is not perfect and certainly can occasionally be abused. But if you do not compensate for the difference in legal systems and simply use your Anglo-Saxon legal intuition to evaluate the consequences that these sorts of law have on the continent, your evaluation will be way off.


PS: I realise that I have just written the above after relying to (13) and assumed that you were targeting or including the French legal system with your remark. If that was not the case please disregard my comment.

62:

There are no "universal human rights" beyond what particular societies care to create for themselves or impose on others.
THAT is almost a direct quote from ISIS, actually.
Dirk, do you reaise what you are saying?
From others' comments, it would seem not.
WAKE UP!

63:

Cath
"We" that is the Brits don't consider "free speech" to be an absolute right, either, hence our laws on "Hate Speech"
I think you may be a little confused.
However, & contrariwise, your general argument is very sound & I agree.
In your very next post ( #61 ), though, you hit right on the mark of a fundamental problem:
.... the Common law system this would be a receipe for abuse. But the Roman system does not work in the same manner .....
And that is one of the main causes of tension shall we say, between "us" & the EU.
And it is very important.
So important, that I think it should be part of a separate thread.
Charlie?

64:

I think that we are witnessing a drift between the USA and UK on one side, and Europe on the other (defining "Europe" as "The European Union, possibly minus Hungary and Poland on their bad days, and adding things like Switzerland).

After the Second World War Europe has taken steps to codify and unite various traditional code of Human Rights (the French Declaration of 1789, the Magna Carta, etc.), in line with efforts made in the same spirit in the United Nations. Ever since, it has had a tendency to reinforce this system and the powers to enforce it.

The USA, by contrast, have recently use a creative interpretation of its law to deny basic Human Rights to certain people, basically upon the notion that these fundamental rights are enshrined in their Constitution, that their Constitution applies to their citizens (and possibly residents) but not others. The consequence is that we Untermenschen can be assassinated, snatched, arbitrarily indefinitely detained, tortured, and of course spied upon. Actually, the United States are party to various international treaties that guarantee these rights to all, but when has reality ever stopped a Right-wing Republican politician?

I understand Cameron's attempts at undermining the ECHR and Human Rights standards in the UK as a nod to that US tendency, and a way to reassert the British attachment to the US before all. In this respect, Cameron is in the line of Churchill's "if Britain must choose between Europe and the open sea, she must always choose the open sea".

For our European friends (and there are many in the UK who believe in the European ideal), it means that the USA, who have been the "indispensable nation" (rather unreliably so) in the 20th century, are giving two signs of fading away as such: first because their relative hegemony is diminishing with the rise of Europe and the BRICS, and second because their commitment to their values seem seriously diminished. The consequence is that we might be less and less in a position to rely on the USA as provider of strategic depth for the European model of society. It will be more crucial to build a strong political European Union, capable of defending and promoting on its way of life on its own.


65:

I understand Cameron's attempts at undermining the ECHR and Human Rights standards in the UK as a nod to that US tendency, and a way to reassert the British attachment to the US before all.

Interesting, I hadn't thought of it that way. It's so dressed up in anti-European rhetoric that it plays like a straight bit of shifting to appease the Euro-sceptic wing and to block potential UKIP defectors, both MPs and at the ballot box. Not sure it will work at the ballot box, but I'm not in the constituency to which he's attempting to appeal.

But there is a strong Tory tendency to bring everything American to the UK too, whether or not it works. Privatised health-care, yes please. Privatised prison system, yes please. A 'bill of rights' that's lets us say "damn foreigners don't have rights after all (oh and our own citizens don't either)" best of both worlds!

Although, as you'll tell from the site's URL, they're a campaigning organisation, there's an interesting take-down of some of the egregious errors in the proposal on the Liberty Human Rights site.

66:

1. I'm not targeting the French legal system.

2. I live in Scotland, which still runs on something descended from Roman law, not the English common law.

67:

Thanks, cahth3iK, for the helpful reminder of the difference between continental and Anglo-Saxon law.

I'm German, and thus have grown up with Roman law. For me, "free speech" has always been a very non-sensical concept, even a non-sensical wording for a concept. It seems so broad to me that it's bordering on having no real meaning at all.

The German Grundgesetz in its formulation of the human rights in its first 19 articles (Grundrechte, fundamental rights most of which apply to everybody, not just German citizens) does not use the words "free speech". Instead article 5 guarantees the much more concrete right to express one's opinion ("freedom of expression"), and at the same time sets some limitations for this right (namely provisions of general laws, provisions for the protection of young persons, and other people's right to their personal honour). Link to an English language version here: http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0030

To me this makes more sense than a broad and cloudy "right to free speech". Would Anglo-Saxon people find it abhorrent?

68:

One problem we've got is the word "free" has two meanings -- free as in beer, or free as in unrestricted?

(Similarly, many languages have one word where English has two -- "safety" and "security". Distinctions: they matter!)

69:

You'll have to ask an American, there are plenty of them. They're the ones that get hung up on a partial reading of their first amendment.

In this particular English and Welsh corner of Anglo-Saxon common law we don't and never had an absolute right to freedom of speech. But then we famously, or infamously, don't have a written constitution either. The situation here is basically we're allowed to say whatever we like, unless we're not. We're obviously not allowed to defame people, we're not allowed to incite others, we're not allowed to use hate speech and so on. Those laws apply evenly to everyone, but in practise unless you really slander a public political figure - wrongly attack their personal life for example - you can usually get away with being more "robust" (read: downright offensive) in your language about their political choices than you could about anyone else. Anyone else in the public eye might well sue if you used the same language about their work but a politician has to smile and take it.

Like a lot of Brits South of Hadrian's Wall (in Scotland different laws apply), I don't know the fine details, because they're not actually spelt out in a neat, pithy phrase: the limits on what I am allowed to say are spread across I don't know how many different laws. However, I've got to within months of my 50th birthday and expressed my opinions on a number of hot topics here and in other places pretty strongly and not got in trouble with law about my choice of language.

People do get into trouble, sometimes rightly, sometimes wrongly - and the system is struggling with new modes of expression like Twitter and retweets - but so far it is adapting. Common law and no written constitution is good like that - precedent is powerful and as cases resting on Twitter or Facebook come to court and establish firm precedent, the system adapts to the times.

70:

"Instead article 5 guarantees the much more concrete right to express one's opinion ("freedom of expression"), and at the same time sets some limitations for this right (namely provisions of general laws, provisions for the protection of young persons, and other people's right to their personal honour). "

So you have the Right to say anything you like as long as there is no law that forbids it. I'm sure that is what the future holds in store for all of us. As usual China is racing ahead...

71:

It appears that I have found a person who does find the German constitutional right of freedom of expression abhorrent :-) (not very surprisingly, considering your previous comments).

Apart from making a wholesale comparison to China (which I find just as non-sensical and wishy-washy as the "free speech"-fetish), would you care to explain what exactly it is that you find wrong? Because I can't follow you. Wouldn't "So you have the Right to say anything you like as long as there is no law that forbids it" also be an accurate description of the common law-approach to "free speech"? The laws in question for instance being anti-defamation laws?

Also, what else do you feel you absolutely need to be free to say, that wouldn't be covered by the freedom to express your opinion?

72:

Also, here's a general thought (not as a reply to a specific post): ultimately the right to speak, or "to say anything you like" is meaningless. You can mutter to yourself as much as you want all day long. It doesn't matter at all. What does matter is the right to be heard, to be listened to, in the political process, by the government, by the courts, by society at large. Your "right to say anything you like" doesn't obligate me or anybody else to listen to a word of what you say. I believe that's what I find so wishy-washy and meaningless about that right. However, as long as we live in a society, your right to express your (political) opinion does obligate me (and everybody else concerned) to consider your opinion, or at least to consider whether it's worth considering. It's the right to be heard that needs protecting.

By exercising your "right to free speech", what you are actually doing is making a demand on everybody else to listen to what you say. So it should better be worth their time and effort. And that in turn obligates you that what you're saying deserves to be listened to. Hate-speech, slander, unintelligible gibberish all don't deserve that. That's why it's right to exclude them from protection.

73:

I should have said I find the German approach a little odd but in no way objectionable. It's odd to me simply because it's rather clear and novel but new - I'm not culturally used to it but it's not obvious it restricts me more than current UK laws and it spells it out pretty clearly rather than leaving it to a general understanding of this is how things are.

74:

What can I say, except that I find the American approach to freedom of speech to be far superior to the European models. Of course, no doubt for saying that I will be once again compared to ISIS.

75:

"Hate-speech, slander, unintelligible gibberish all don't deserve that. That's why it's right to exclude them from protection."

Does that include "slander against the state"?
http://www.dangcongsan.vn/cpv/Modules/News_English/News_Detail_E.aspx?CN_ID=195283&CO_ID=30181

Of course, under German law principle previously described he obviously deserved the jail sentence because he abused his freedom of speech by breaking the law that one should not slander the state.

76:

The interesting one is Russian (I first heard this one from John Erickson) - apparently, the word for security comes from the root "absence of threat" - bezopastnosti (it's the B in KGB).

While pointing at the U.S. Constitution, it's always worth remembering the "three-fifths compromise"; or asking why it took until amendment number thirteen to abolish slavery. Having said that, in the eighteenth century they saw themselves as a new form of government, not necessarily an evangelical form of government. Their rules, for their people, regardless of the way other countries did things. The flip side of that "their rights for their people" is that when push comes to shove, "their people come first".

It's not that they aren't holding to their own standards, it's that their own standards only apply to US citizens. If Syria is a tyranny, with a Mukhabarat, willingness to use WMD on its own civilians; and its internal opponents will kidnap, betray, destroy, murder, behead; why should they behave towards Syrian militants any differently than its own government would? It's a similar implication to that of the British Empire, namely "we'll take over, we'll run the place better than the natives could, even if it isn't to full British standards".

What is depressing is that US domestic political consideration trumps foreign policy, almost every time (not that we're much different). Orange jumpsuits played well with the U.S. voter, and really badly with ROTW.

77:

The "American approach to freedom of speech" does not preclude censorship; see the Hays Code, the MPAA and RIAA, and so on. Even where there's no official censorship there's de facto censorship; some topics are just plain "unpopular" and will get you (a) zero traction with existing publishers, and if you go it alone (b) will get you on the radar of the police. Who, thanks to "community standards" laws, the catastrophic intersection of the inter-state commerce clause with the internet, and crusading [elected] prosecutors can get you arrested and dragged halfway across a continent to stand trial in whatever local jurisdiction is most like to have jurors who will take offence at whatever you did. (See example.)

78:

According to the list of exemptions to the right of freedom of speech, the right of freedom of speech does not include the right "to cause severe emotional distress" so while you may think the USian way is better than the European way, you're not in step with the USian way either.

79:

"...some topics are just plain "unpopular" and will get you (a) zero traction with existing publishers, and if you go it alone (b) will get you on the radar of the police."

So unlike Europe eh?
I am also particularly surprised that quote (a) as being some kind of evil when you certainly overtly apply that principle to this blog, and AFAIK every media outlet in the world also applies the same rule.

80:

Your words have caused me severe emotional distress and I am going to get a European Arrest Warrant and have you extradited to stand trial.

81:

You'll have to move to European country and submit to our superior justice system first.

82:

I don't think your point of view is baseless. But while the universe isn't endowed with a human rights field, there *are* obvious moral absolutes. The principle one is that a society treats all its members identically (in effect, the golden rule). And a second, flowing from the first, is that one person can't decide whether another is a member of that society. (Proof: if person A can exclude person B from society, then, by the first law, person B also has that right and there is no society only a collection of individuals. Therefore no society subscribing to the first law can admit such a right.∎) I accept that different societies will thereafter give people different rights - so, yes, an anarchist society might not grant people the right to property (contrary to the UHDR) while a society that subscribed to animal rights might forbid humans from eating meat. But whatever the particulars, by the second law, they have to be applied universally to every member. If you enter a society's spatio-temporal region you collect all its rights.

If you want to debate this further, I'm on the universal soap box—the one for songbirds—under this id.

83:

"...there *are* obvious moral absolutes. The principle one is that a society treats all its members identically (in effect, the golden rule)."

The Romans would not have agreed. Like I said, different societies can come to quite different conclusions.

84:

So what can I say? You find something which I have shown to be meaningless far superior to something meaningful, without being able to give any reason for it?

Well, good for you, congratulations. You're free to find anything you want without having (or being able to name) any reason for it. I just would have liked to have a conversation. You don't want me to understand your point of view? Okay, I won't try any longer.

85:

So perhaps you can point to what can be said in (say) Germany or the UK which cannot be said in the USA? Then we can do the vice versa bit.

86:

Charlie @ 77
No comprende senor.
Is that link a joke? [ It certainly looks like an elaborate in-joke ]
What the f*** is supposed to be going on?

El @ 81
Err - I think Dirk lives in Bedfordshire, somewhere ( i.e. in the UK )

100kindsofrain@ 82
Er..
Proof: if person A can exclude person B from society, then, by the first law, person B also has that right and there is no society only a collection of individuals.
You just, effectively, quoted the madwoman from Grantham.
Yuck!

87:

Greg, that link Charlies gives is to a contemporary account of the Amateur Action BBS case, which happened in 1994. At that time, the US law on obscenity was based on the idea that local standards mattered. And the Amateur Action BBS, based in California, was charged in a Tennessee court, over material which was downloaded by a Postal Inspector.

I was using Fidonet at the time.

88:

ATT
Thanks
So, As far as I can make out a Bulletin Board society (?) was deliberately targeted from out-of-state by ultra-puritans (presumably christian nutters in this case)
What happened in the end?
My web-search turned up the original results, but follow-ups were thin on the ground.

89:

What happened in the end?

They were found guilty and did prison time in Tennessee.

(That was my point. Legal in one jurisdiction, criminal in another, and the interstate commerce clause -- because they were selling porn videos via mail order -- meant that a blue-nose from out of state could go after them.)

90:

It's rather stronger than that. Exceptions to the general right to freedom of expression can only be made on the rather limited range of grounds given in clause 2, and they must be set out explicitly in law. And even then the court can still throw it out if it deems that it isn't "necessary in a democratic society". This gives the court the power to negate pretty much any law it finds seriously objectionable.

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