Would JK have fallen foul of new hate law?

The right to protest is an essential part of freedom of expression, but so too is the right to cause offence, writes John Mclellan

The primary job of an editor is to choose. As the former proprietor of the Washington Post, Katharine Graham, once said, “The power is to set the agenda. What we print and what we don’t print matter a lot.”

Once again the Sun newspaper has become the focus of social media fury for putting the response of the violent ex-husband of author JK Rowling on its front page after she wrote a vivid description of the abuse she suffered at his hands.

The fury was predictable, with calls for changes in the law, demands that the regulator intervene and, strangely, a daily newspaper editor even questioning whether it was journalism at all.

The question is not whether it was journalism, or whether it had the right to publish, but whether the paper made the right choice in publishing the story. That the Sun presented the reaction of Jorge Arantes as a “sick taunt” made no difference and many people exercised their right to attack the choice and to encourage others not to buy the paper.

As the Sun knows only too well from its experience in Liverpool after its Hillsborough disaster front page in 1989, the market can be an unforgiving place.

The irony is that the genesis of the article was the social media attacks on Ms Rowling for expressing a view about the use of the term “people who menstruate” instead of women, resulting in a barrage of abuse and accusations of transphobia in an attempt to close down her views.

There will no doubt be complaints about the Sun to the Independent Press Standards organisation, followed by the usual accusations of bias and uselessness when, inevitably, the regulator rules that the paper has the right to publish even if lots of people find it offensive.

In a society which genuinely values freedom of expression, the right of editors to choose and to publish must surely be protected, which comes back to the new Hate Crime and Public Order Bill recently tabled by the Scottish Government.

Under its terms, stirring up hatred – those are the words used in the legislation – on grounds of disability, race, religion, sexual orientation and, crucially this week, of transgender identity will become an offence. It would mean that JK Rowling’s original tweet would almost certainly have resulted in a visit from Police Scotland because amidst the tirade someone was bound to make an official complaint and the police would feel bound to investigate even if there were no charges. That in itself would be an affront. Similarly, it would not be difficult for those saying “there should be a law against” The Sun and its coverage to claim the story had stirred up hatred against women on grounds of misogyny and an offence had been committed.

The right to protest is an essential part of freedom of expression, but so too is the right to cause offence, and introducing new crimes in which it is impossible to draw a firm distinction between causing offence and stirring up hatred is a recipe for bad and dangerous law.

There is no doubt we are living through one of the angriest, most fractious eras any of us have ever known; Scottish independence, Brexit and climate change are leaving ever-decreasing room for reason and compromise, and to that can be added demands that any monuments with links to the slave trade be torn down.

What we as individuals don’t say has come to matter as much as what we do. The emotional speech by Conservative MSP Brian Whittle in the Scottish Parliament this week was a perfect example, where he recalled with tearful regret how as a young man he stayed silent as the driver of a car in which he was a passenger deliberately frightened an old Asian man as he tried to cross the road.

It isn’t easy to speak out. My relationship with one of my oldest friends has never been the same after I accused him of racism.

But staying silent is a right too, and no-one should feel shamed into making gestures with which they are uncomfortable, no matter what the issue. The right is to choose, and deal with the consequences.

The slavery reparation campaign has quickly gathered pace, with some even using historic compensation payments to slave owners as justification for a wealth tax. Good luck with that.

Now the associated “Topple the Racists” campaign has identified the statues of Sir John Moore and Sir Colin Campbell in Glasgow’s George Square for removal.

In Victorian times they were venerated as embodiments of British fortitude and heroism against the odds, Moore having died at the 1809 Battle of Corunna during the Peninsular War while holding off an assault by overwhelming French forces to allow the evacuation of around 15,000 troops in a forerunner of Dunkirk.

Campbell, later Lord Clyde, was a junior officer in that campaign and in 1854 he was commander of the 500-strong “Thin Red Line” of Sutherland Highlanders as they saw of an attack by 2,500 Russian cavalrymen at the Battle of Balaclava during the Crimean War, their bravery recognised by the highest number of Victoria Crosses ever awarded during a single action.

Not only were Moore and Clyde both Glaswegians, but they both went to the High School of Glasgow which I attended in the 1970s and their names live on today in two of its four houses.

What I didn’t know was that in 1796 then Colonel Moore played a significant role in the 1796 recapture of St Lucia from a rebel slave army under French Republican control, or that in 1823 Campbell helped put down a rising of 10,000 slaves in Demerara, Guyana.

Both were professional soldiers doing what they are paid to do, enforce political will, but were they racists?

Almost certainly, but then by today’s standards so too was Abraham Lincoln who had called for the return of freed slaves to Africa where his predecessor President James Monroe had helped establish Liberia, capital Monrovia as an Afroamerican settlement.

Yet there are no calls for Lincoln’s statue in Edinburgh’s Calton Cemetery to be removed.

Moore and Clyde are symbols of Scotland’s role in an empire which made Glasgow what it is and as such their accurate stories and their memorials should be preserved.

There is talk of an empire museum to lay bare the full story of its growth and perhaps the troubled People’s Palace could be the place.

The Nelson Obelisk is a short hop away but when it comes to symbols of British conquest, don’t mention the Doulton Fountain outside.