Pastor Terry Jones ban – what about free speech?
20 January 2011
Terry Jones, an American pastor who threatened to burn Korans on the 9th anniversary of the 9/11 attacks, has been banned from entering the UK “for the public good”.
He has told BBC Radio 5 live that he would challenge the “unfair” decision as his visit could have been “beneficial”. But, as I posted last month, the recent case of an Indian preacher who challenged his exclusion from the UK suggests that the courts would be unlikely to quash the Home Secretary’s decision. The following is taken from my previous post on the topic.
Jones, an otherwise unknown local pastor in Gainsville, Florida, cause worldwide controversyearlier this year when he proposed an “International Burn a Koran Day”. He has not as yet carried out his threat.
It is well-known that free speech protections mean that we have to protect the rights of those we disagree with. A recent High Court case involving an Indian preacher shows that the protection probably does not extend to non-UK residents such as Jones, but it may to his supporters.
Article 10 of the European Convention on Human Rights permits a public authority to breach freedom of expression rights, amongst other things, if “necessary in a democratic society”. The Home Secretary has no obligation to protect the free speech rights of Pastor Jones. However, in deciding whether to ban the pastor, she is must ensure under human rights law that a ban would not unduly restrict the freedom of expression rights of those who could hear him speak in the UK.
The High Court recently addressed similar issues in the case of Dr Zakir Naik, when it authorised the exclusion from the UK of a popular Indian television Islamic preacher, on the grounds that his presence would not be conducive to the public good (see our post / the judgment).
The High Court considered whether Dr Naik’s personal freedom of expression rights were at issue. Although he is based in India, there have been a number of recent cases which have extended the protections guaranteed under human rights law beyond the borders of tue UK. For example, in R(Smith) the Supreme Court ruled that soldiers in UK bases (but not battlefields) abroad were protected.
However, the High Court was unwilling to extend free speech protections to Dr Naik, and if Pastor Jones’ case reached court, it is unlikely he would be treated any differently. In any event, even if Jones was protected under the Human Rights Act, it would still be open to the home secretary to breach his rights if a proportionate means of pursuing a legitimate end (human rights speak for “fair enough”).
If he lived in the UK to begin with and decided to burn Korans, that would be a different position altogether, although in fact our freedom of expression protections are less robust than those in the US, and he may well have been caught under incitement of racism laws (see this post on Inforrm’s blog for more).
But it is not just Jones himself who is entitled to article 10 protection. Another aspect of the protection is that it ensures the right to “receive information“, and this could apply to the people who might have come to hear Pastor Jones speak, even those who do not agree with his views.
In Dr Naik’s case, his supporters based in the UK were entitled to the right to receive the information that Dr Naik would have given them during his public lectures. Article 10 was accordingly engaged. However, the High Court held that the interference with Article 10 could be justified under Article 10(2) as it was proportionate and in accordance with the law governed by the Immigration Rules and the Home Office’s policy
The relevant Home Office Policy in such cases is its Unacceptable Behaviours Policy. Jones would likely be caught by the policy of excluding those who “foster hatred which might lead to inter-community violence in the UK.”
Given the unattractive and inflammatory views of Pastor Jones, it seems unlikely that his case, if considered by a court, would lead to a different result from that of Dr Naik’s, in the High Court at least (the higher appeal courts may have a different view). But human rights law does show that the home secretary has some thinking to do before excluding preachers and speakers who many do not agree with.
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- Exclusion of Islamic preacher Dr Zakir Naik was lawful, says High Court
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That is a valid point, but the other way of looking at it is that it prevents UK citizens from obtaining and disseminating opinions in which they are interested, so by excluding foreign speakers we restrict the free speech right of UK citizens.
Adam deals with this in the original post:
“In Dr Naik’s case, his supporters based in the UK were entitled to the right to receive the information that Dr Naik would have given them during his public lectures. Article 10 was accordingly engaged. However, the High Court held that the interference with Article 10 could be justified under Article 10(2) as it was proportionate and in accordance with the law governed by the Immigration Rules and the Home Office’s policy”
Personally I doubt Pastor Jones has anything of value to say to anyone about anything, but that’s true of much disputed speech and it is dangerous stuff to make the criteria for permissible speech depend on the value of what is being said. Who is to judge …
And, as I think we agree, free speech as a general policy doesn’t turn on the nationality of the speaker, so all the other arguments for and against supressing the likes of Jones still apply as much as if he were a UK national.
It’s an interesting irony: the only reason that the government has the power to exclude Jones and similar individuals is that they are not British citizens. Yet the arguments for and against free speech have nothing to do with the nationality of the particular speaker.
Of course it’s understandable that the government doesn’t want any community tension – but having free speech means you have to lump it at times. I wonder also if the government wants to be seen to have tough border controls, even though a single person turning up for a speaking tour has nothing to do with immigration as such (none of these controversialists is proposing to move to the UK as far as I know).
If free speech is to mean anything it has to allow the expression of speech people happen to take exception to. The irony is that those who would shout loudest against Jones’ admission are likely to be those who shout loudest in favour of their own right to make extremist statements.
What puzzles me is why anyone would take Jones or Naik seriously. I don’t have time for extremists of any kidney, but do we have such little confidence in the marketplace of ideas that we think their ilk will triumph?
It’s funny how we look back and laugh at the Bishop of Southwark/Malcom Muggeridge v Cleese and Palin debate over the Life of Brian (brilliantly satirised at the time by Rowan Atkinson and Mel Smith on Not the Nine O’Clock News) yet can’t see the parallel with religious extremists today. The joke about Muggeridge and the Bishop was that if their faith was as strong etc as they claimed, they really shouldn’t have been worried about a comedy film.
Still, at least Life of Brian was a very funny film likely to have been watched by millions. By contrast, does anyone really expect a rash of conversions/apostasy/religious riots just because a few tenth rate agitators turn up here and peddle their poison? We did it is true have the Rushdie affair, but its primary lesson was that we should have a more, rigorous defence of free speech from the authorities, not less.
Demonising agitators rarely works – the failed prosecution of Nick Griffin only served to give him undeserved publicity, and (loath though one is to mention his name, since it is usually the sign that an internet thread has lost the plot) jailing Hitler did not pour him back into his bottle … And who had heard of Pastor Jones, with a congregation of not much more than himself and the neighbour’s dog, until the media whipped up a frenzy over a childish stunt he pulled?
In any event, the internet has virtually settled the issue. Anyone interested in the views of Jones, Naik or whoever can find plenty of material online, and there’s not much the state can do about it. That being so, I guess a decent education system along with a responsible mainstream media is the best hope that enough of the population will turn out rational enough not to turn us into a nation of lunatics. The state should concentrate its efforts accordingly.
“Yet the arguments for and against free speech have nothing to do with the nationality of the particular speaker. ”
Perhaps arguments for free speech as a general policy have little to do with the citizenship of speaker, but one particularly powerful argument for the *right* to free speech hinges on just that. Law has normative force (i.e. it tells you what you ought to do rather than just punishes you if you break the rules) because a) laws are necessary and b)each citizen has an equal role in its creation. Free speech is part of that because it allows citizens to discuss the laws to which they will be subject and try and convince each other that a particular solution is best.
UK laws aren’t binding on foreign residents like Terry Jones, so it’s hard to see why he should hold the right to speak freely here. If UK citizens are convinced by his rhetoric then they’re more than capable of spreading those ideas themselves.