Shooting of Congresswoman Giffords and the limits of free speech

9 January 2011 by

Gabrielle Giffords, a Democratic US congresswoman, is in a critical condition after being shot at a public meeting in Tucson, Arizona. Six other people died in the shooting, including a federal judge and a 9-year-old child. Eighteen others suffered gunshot wounds.

Little is known as yet about the alleged shooter, Jared Lee Loughner, save that he had a troubled past and may have mental health problems. It is also possible that there was a second person involved.

Two main issues arise from the shootings at present. First, the long-standing question as to whether the lax gun control laws in the United States, protected under the US Constitution, are indirectly responsible for the fairly regular occurrence of shooting sprees. In the UK, handguns were almost completely banned in 1997 following the Dunblane massacre, when 16 children and one adult were killed at a school in Scotland. In the United States, the US Supreme Court has recently upheld the right to bear arms under the Second Amendment to the US constitution.

A second issue, and one which is perhaps more relevant to the UK, is the limits of free speech. Whilst the shooter’s motives are not yet clear, many have quickly placed blame on the charged political atmosphere in Arizona in particular and the United States in general. In a news conference, local sheriff Clarence Dupnick repeatedly referred to the “vitriol” that had characterised local political discourse, and said that Arizona had become a “mecca for prejudice and bigotry”.

These warnings are not new. Arizona has been the centre of a tense debate over immigration controls. The judge who was killed was responsible for a much-criticsed decision to allow a compensation case for illegal immigrants to proceed, and received death threats following the ruling. And Gifford’s office had recently been targeted by vandals who broke widows, following which the congresswoman reminded the public that her office had been placed in crosshairs on a map produced by Sarah Palin, a leader in the Tea Party movement. Palin also tweeted for her supporters not to retreat, but “RELOAD!”.

And the problem is not confined to Arizona. Frank Rich, a New York Times columnist, wrote in October that the nation was in “denial” about “the level of rage still coursing, sometimes violently, through our national bloodstream”. The radical right’s anger is, Rich argued, “becoming less focused, more free-floating — more likely to be aimed at “government” in general, whatever the location or officials in charge”. And

Not for the first time in history — and not just American history — fear itself is at the root of a rabid outbreak of populist rage against government, minorities and conspiratorial “elites.”

What is to be done about violent “rage”, publicly expressed? Political rhetoric in the United States is often more offensive and charged than in the UK, due in part to the more robust freedom of expression protections under the US Constitution. Under English law, freedom of expression is protected under Article 10 of the European Convention.

However, Article 10 is subject to a number of qualifications, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

For example, political expression is restricted by criminal laws against hate speech. As explained by the Inforrm Blog in the context of a US preacher who threatened to burn Muslim holy books:

the threatened conduct would plainly have been criminal. The Public Order Act 1986 criminalises the use of threatening, abusive or insulting words or behaviour which is likely to cause, in general terms, public disorder. Section 5 prohibits disorderly behaviour which causes harassment, alarm or distress. A criminal offence will be committed under that section if words or behaviour that are threatening, abusive or insulting are used or any such material displayed ‘within the hearing of a person likely to be caused harassment, alarm or distress’.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not protected by the First Amendment: obscenity, child pornography, speech that incites imminent danger, and regulation of commercial speech such as advertising. Although the United States does have laws against hate speech, as compared to the relatively low bar of the “likely to cause” English test, in the US speech must incite imminent violence. This is difficult to prove and as such has led to few successful prosecutions.

It is one thing banning “hate” speech in order to prevent violence, it is quite another proving that the former caused the latter. One of the challenges of the debate over political free speech is that it is very difficult to say after a violent event that it was “caused”, particularly in the legal sense, by public rhetoric, especially if the offending words were aimed at the population rather than a particular violent perpetrator. Hence the constant references to a “febrile” or “charged” political atmosphere by commentators on the recent tragedy, bur less individual blame.

The English law therefore works on the assumption that such conduct can be preempted by not allowing such an atmosphere to develop in the first place.

There are other ways that political speech is constrained in the UK. The English courts recently rendered void a general election victory for a politician who, amongst other things, made “personal” attacks on an opponent’s views on immigration. The court ruled that a political position “can go beyond being a statement about his political position and become a statement about the personal character or conduct of a candidate”. It is almost impossible to imagine the US courts challenging the rhetoric of a politician in the same way.

But the British and US approaches may not be directly comparable. The United States, for a number of reasons – political, religious and historical – often demonstrates a highly polarised political system. The two-party system has perhaps encouraged this. Coalition politics such that we currently have here would be an alien concept across the Atlantic.

And free speech protections are fairly strong here even in light of the rarely used hate speech powers: the UK has been criticised for the spread of radical Islamism in “Londonistan”, and this problem has arisen in part as a result of a tradition of permissive multiculturalism which encourages free political and religious expression.

Moreover, it is possible that it is the lax gun control laws, which allow easy access to firearms, rather than free speech protections, which make such tragedies possible.

Of course, the shooter may have been motivated less by politics and more by his own internal demons. And there is an understandable public need to attribute killings which would otherwise be senseless to explainable, if not excusable, motives. But, as Sheriff Dupnick said, people with mental issues “are especially susceptible to vitriol”. There may be free speech, he said, but “it is not without consequences”.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more

8 comments


  1. JS says:

    @kris – Well, it looks like he wasn’t influenced by speech
    either, unless you count Giffords not answering a nonsensical
    question three years ago. Again, people rushed to judgment and gave
    explanations which confirmed their prejudices but were proven
    wrong.

  2. George Hayes says:

    Simply owning an inanimate object, whether for it’s
    utilitarian benefits or as an article of interest – is a human
    right. In a free society a ‘crime’ can only be a ‘crime’ if the
    ‘criminal’ caused loss or injury to another individual. Anything
    less is invalid.

  3. […] Finally, Adam Wagner on the UK Human Rights blog considers the detail of the restrictions allowed by the law in such circumstances in the US and in Europe: Shooting of Congresswoman Giffords and the limits of free speech […]

  4. Steve H says:

    I believe Kris is mistaken in his assertion dissociating certain speech acts from specific physical acts. The oft used defence of provocation to crimes of extreme violence/homicide is one of loss of control arising from an uncontrollable emotional reaction to a physical or other act. Kant himself recognised emotional loss of control as a mitigating factor in crimes otherwise committed by free will.

    What occurred in Nazi Germany before Kristallnacht, were often acts of sporadic violence directed at Jews on account of alleged misconduct, the blood libel being a particularly nasty manifestation of hate speech. Hate speech promotes a climate of distrust, social disharmony and fear by those minorities targeted. I not believe that US figures in the public arena, who have allured to an interpretation of the Second Amendment to the US Constitution as a right to armed insurrection to Federal government, can really dissociate themselves from the emotional reaction that these speech acts may cause in some individuals. Indeed, after reading David Neiwert, who has advanced a cogent argument linking public hate speech in the US, with adverse consequences for those individuals or minorities targeted by the American Right, in his book ‘The Eliminationists’, I believe that denying the link is typical of those who refuse to take responsibility for their actions by pointing the finger of blame elsewhere.

  5. kris says:

    the US Bill of Rights are not “on the statute books” – they are amendments to the Constitution.

    These rights are not given by the Government – they are given by our Creator to all wo/men and are recorded in the Constitution. The Government cannot take them away.

    I don’t care if Loughner was “influenced” by speech. “Speech” did not pull the trigger.

  6. ObiterJ says:

    “In the UK, handguns were almost completely banned in 1997
    following the Dunblane massacre, when 16 children and one adult
    were killed at a school in Scotland. ” A rather problematic
    statement Adam. We certainly have tight gun laws but they are
    circumvented daily. Palin – the “thinking man’s” worst nightmare.
    The UK had better distance itself from the USA before she gets
    elected – as well she might.

  7. DDS -- NRA Life Member says:

    “Not for the first time in history — and not just American
    history — fear itself is at the root of a rabid outbreak of
    populist rage against government, minorities and conspiratorial
    “elites.” ” One of those “times”, and perhaps the main reason there
    are not only differences between the American way and the English
    way, occurred on April 19, 1775 in and around the towns of
    Lexington and Concord in the Kings Colony of Massachusetts. You may
    have heard of it. 3000 formerly loyal subjects of George III ran,
    some of them for miles, to get a chance to open fire at the troops
    of their own government. In part due to the contempt shown them by
    King’s officers who considered them “fit for naught but beasts of
    burden”. Your attempt to demonstrate how much better off we on the
    western side of the Atlantic would be if we had only followed the
    English path shows that that contempt still exists on your side of
    the pond. DDS — NRA Life Member

    1. 1775? says:

      Perhaps I could gently remind the above poster that there have been some minor changes to the political and constitutional landscape, both in the UK and the USA, since 1775? An interesting article, and response, nevertheless.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: