How, exactly, do we define ‘hate speech’? Would tele-evangelist Pat Robertson’s 1999 slur on our wee nation as a “dark land overrun by homosexuals” fit the bill, or was that just an example of the intolerant prejudice of an attention-seeking aspirant US president? Angela Rayner’s venomous reference to those on the opposite benches as “Tory scum” wasn’t exactly a bid to ingratiate herself with the Carlton Club set, either. Are we all meant to adopt an approved parliamentary syntax which means we can’t name Boris Johnson as a liar but may condemn him as “a stranger to the truth”?

One is tempted to recall the landmark Liversidge versus Anderson case of 1942 in which dissenting judge Lord Atkin cited that great judicial authority, Chief Justice Sir Humpty Dumpty. “When I use a word” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less”. The question is, said Alice, “whether you can make words mean so many different things”. “The question is”, said Humpty Dumpty, “which is to be the master, that’s all”.

David J Black

Holyrood’s determination to usher in a new Age of Alice in Wonderland Endarkenment with subtle hints of the GDR Stasi, the Teheran Morality Police, and Senator Joe McCarthy’s un-American activities committee, must surely be the biggest political own-goal since Maggie’s poll tax. The Act seems so inimical to the SNP’s electoral prospects that I found myself congratulating Conservative MSP Murdo Fraser a few weeks ago on his party’s sheer strategic brilliance in secretly promoting the Bute House agreement which parachuted Greens Lorna Slater and Patrick Harvie into the heart of government, the better to destroy nationalism from the inside. Cue inscrutable smile.

The SNP’s electoral base lies, to a great extent, in the council estates of Scotland, and one can’t really imagine that the inhabitants there speak of little else but gender identity. In places like Raploch, Muirhouse, and Drumchapel, paying the rent and feeding the kids tends to be a priority. The present measure is also the perfect paradox insofar as – however well intended – it has stirred up more loathing and nastiness than it will ever prevent.

Moreover, it introduces quicksands of dangerous uncertainty into public and legal discourse while clearly mitigating against women who seek ‘safe spaces’, and working class males of alleged low educational attainment whose demotic speech patterns tend to be less than Miltonic. Pity, too, the police and the courts, overwhelmed by ill-motivated and vexatious complaints.

There can be many variations on the hate theme. An elderly Edinburgher who has never troubled to conceal his own orientation recently complained about the current focus on transgenderism. The whole daft debate was an insult to “normal gay people” apparently. J.K Rowling and Joanna Cherry were spot on, he insisted. Oh dear – I do hope he doesn’t get sent down for seven years!

Good intentions apart, bad laws have unintended consequences. America’s prohibition created much bigger problems than the sin it sought to address. The attempted clamp-down on sectarian football chants wasn’t a runaway success, really. Holyrood’s “getting it right for every child” scheme allotted a non-familial ‘named person’ to everyone up to age 18. It was vetoed by the Supreme Court in 2016 as a breach of the European Convention on Human Rights, Article 10 of the which confers “the freedom to hold opinions and to receive and impart information and ideas without interference by public authority”. Is the Hate Crime Act, too, doomed to fail? Scotland’s former lord president, ex Supreme Court justice Lord Hope, has already counseled it should be repealed forthwith.

Is there some pathogen in Scotland’s national DNA which compels its rulers to muzzle the minds of the citizen? The legislative guddle enacted on April Fools’ day suggests as much. We are, after all, the country in which James VI promoted witch-burning and Knox issued a tract against “the monstruous regiment of women”. One of the later decades of our 17th century is engagingly termed ‘The Killing Time’, when such luminaries as ‘Bloody Mackenzie’ were in charge.

On the other hand for all our lapses into intolerance and bigotry there are many rays of sunshine in our ‘dark land’. Consider the pleas of medieval Makar John Barbour on behalf of “Freedome – a noble thing”, which, the Declaration of Arbroath tells us, “no honest man gives up but with his life”. Nor should it be overlooked that core elements of the Scottish Enlightenment were to have an effect on the American constitution, one being the 1742 essay Of the Liberty of the Press by David Hume, a man now cancelled by Edinburgh University, but who considered himself “an American in my principle” by the time of the revolution.

The effective legitimisation of free speech, indeed, was first given legal effect in colonial America in 1735 by a Scottish lawyer, Andrew Hamilton, when he successfully defended New York printer and publisher John Peter Zenger against a charge of seditious libel. This had been raised by the royal governor of the state, William Cosby, after Zenger had printed accusations of corruption. The articles concerned had been written by another Scottish lawyer, James Alexander, but Cosby decided persecuting the printer was an easier option. Zenger was thrown into jail, while Alexander was disbarred from defending him, at which point Andrew Hamilton entered the lists.

Hamilton was Philadelphia’s leading lawyer and, as speaker of the Pennsylvania House of Representatives, something of a political force. Despite having appointed the judge, Cosby’s objective would be frustrated by Hamilton’s plea that proven truth cannot be held to be libellous. To Cosby’s fury the jury agreed with this defence, and returned a verdict of not guilty. Thus was established a principle which became the founding axiom of the First Amendment. Julian Assange’s legal team could do worse than than test its persuasive potency in a US court.

One doubts many American attorneys are aware of the debt their great liberty-loving republic owes to a Scot whose 1735 success has been called “a morning star of the Revolution”. This is not to say that there is any lack of American interest in the crepuscular goings on in our realm of Outlander. The conservative Washington Examiner, for one, has described Scotland’s Hate Crime and Public Order Act as an example of “legislation so wide-ranging and so censorious that under it you could even be prosecuted for making a joke in your own home”. CNN has reported on the anxieties of one Scottish trans student who believes the controversy is only making things worse. The National Review notes that the act “resurrects the pre-Enlightenment assumption that the policing of expression is a legitimate use of state power”.

The main departure from sound jurisprudence in this case is a somewhat cavalier retreat from accepted principles of legal certainly. A ‘hate crime’ will apparently be what any “reasonable person” says it is. So who defines a “reasonable person”? Even if our hard-pressed police decide it isn’t a crime it can be logged as a hate incident report, and remain on an individual’s record. LGBT rights activist Peter Tatchell, no less, has criticised the act as relying on “subjective interpretation” of what constitutes abuse and allowing people to report alleged offences anonymously.

Then there is the problem of ‘chilling’. Whether you deliver your message from the pulpit or the cabaret stage you might naturally worry about who’s listening in. If they happen to hold a grudge against your liturgical beliefs or your comedy routine you could be hauled in for questioning. We now inhabit a sort of nether-world in which no novelist, actor, journalist, playwright, broadcaster, football fan, or school debater can feel secure in their use of language. We might usefully ponder a dictum of George Orwell’s which was deleted from the first editions of Animal Farm as excessively subversive: “If Liberty means anything at all it means the right to tell people what they do not want to hear.” His perfectly sound sentiment surfaced 27 years later in The Times Literary Supplement. We should, by now, have moved beyond the age of Kafka, Winston Smith, and the thought police. But Scotland’s government, it seems, would rather we be kept in semi-darkness.