Bruce Anderson: A conviction based on fear, not rationality

No one listening to the defendant was in a position to bomb the USA or Denmark
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The Independent Online

Umran Javed will not have many sympathisers. During demonstrations against the cartoons depicting Mohamed which were published in Denmark, he called for the USA and Denmark to be bombed. He has now been convicted of incitement to murder and is awaiting sentence. It looks like being a long one. Few non-Muslim British subjects will complain, especially as Mr Javed looks so sinister in his photographs. Militant Muslims are not good at making friends and influencing people. Even a Liverpudlian knows that he ought to scrub up and steal a tie for his day in the dock.

Most people will be saying that if Mr Javed has to be in Britain, jail is the best place for him. Most people are wrong.

In 1859, John Stuart Mill published a short book, On Liberty. A century and a half later, it has not lost its radical and challenging edge - nor its power of prophecy. When Mill was writing, most reformers placed their hope in democracy. He saw the dangers. He knew that democracy and liberty were not synonymous.

He feared a "tyranny more formidable than many kinds of political oppression. ... Protection against the magistrate is not enough. There needs [to be] protection also against the tyranny of the prevailing opinion." Mill came to a resounding conclusion. "If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person, than he would be justified in silencing mankind.'' Mill went further: "The individual is not accountable to society for his actions, in so far as those concern the interests of no person but himself."

I can hear an immediate and vociferous objection. Surely Mr Javed did not merely express his opinion; he called for countries to be bombed? That would affect the interests of other persons. But did it?

Hard cases make difficult law, so we are fortunate to have the guidance of one of the greatest of jurists, Oliver Wendell Holmes. Although an American, he was trained in the Common Law; few men have written more eloquently about its glories.

Some anarchists had called for the assassination of the President. The case reached the US Supreme Court. Holmes's judgment should ring down the ages. In a frequently quoted dictum, he acknowledged that free speech could not be unrestricted. "The most stringent protection of free speech will not protect a man in falsely shouting fire in a crowded theatre and causing a panic." I put the last four words in italics, because they are often omitted. But even in the case of shouting fire in a crowded theatre, Holmes wanted to know the consequences before assessing the crime.

As for the anarchists, he persuaded his brother justices to acquit them. He argued that to convict them or incitement there had to be a "clear and present danger" that their words would lead to deeds. In its absence, no crime had been committed.

If that test had been applied in Mr Javed's trial, it is hard to see how a guilty verdict could have been obtained. Neither the defendant nor anyone listening to him was in a position to bomb the USA or Denmark. He and those who applauded him might well have been guilty of breach of the peace, in that their behaviour could have incited any right-thinking person to punch them on the nose. If Mr Javed had been fined, bound over to keep the peace, issued with an Asbo prohibiting him from coming near the Danish embassy, he could have had no complaint. But to turn wild and whirling words into incitement to murder is a debasement of our law.

There is an explanation for all this: fear. Fear is a foundation stone of any legal system. We would not need laws if we did not fear lawlessness. Thomas Hobbes is one of the presiding geniuses in any court of law. A criminal law would be useless unless potential malefactors feared the consequences of breaching it.

Yet fear must have its limits. We will never enjoy Burke's manly liberty if we behave like children afraid of going to sleep in the dark. It would be absurd to deny that the world supplies reasons for fear. But those are grounds for reinforcing rational calm, not panic. "Cowards die many times before their death; the valiant never tastes death but once." If the police respond to panic by rounding up noisy nuisances while the courts are in thrall to mob prejudice, we will not be safer. We will merely have let ourselves down and undermined the British way of doing things.

That had been undermined even before the Javed trial, again because of fear. When the Danish cartoons were published, a free media had a duty to reproduce them here, so that we could make up our mind on the basis of evidence. They could have come with health warnings - devout Muslims change channels now/skip quickly past page three - but they should have been shown. They were not shown because editors were afraid of the consequences.

One learns a lot when checking references in the Oxford Dictionary of Quotations. "It is necessary only for the good man to do nothing for evil to triumph", often attributed to Burke, is not to be found in his writings. Perhaps he said it, and someone remembered. Whatever its origins, we all ought to remember it. Though none of us is worse off because a cartoonist suppressed and a Muslim fanatic is unjustly imprisoned for yelling threats, that that does not justify complacency. In today's Britain, free speech is not secure.

In order to appease fanatical Muslims, this government has passed a law prohibiting incitement to religious hatred. Although it is unlikely that this will lead to the prosecution of Professor Dawkins, he would insist presumably that every human being ought to be incited to hate religion. He has a right to say this. The ODQ tells me that Voltaire did not write: "I disapprove of what you say, but I will defend to the death your right to say it." The origin is irrelevant. The sentiment is crucial.

The threat does not only come from extreme Muslims. Sikhs forced a play off the stage. Chief constables have tried to persecute critics of homosexuality. BBC governors were threatened over Jerry Springer: The Opera. Extremists feed off each other's successes and authority's weakness. It follows that the rest of us should never show weakness and should stand united against the danger, whatever its source.

This will lead us into unsavoury alliances. We cannot defend free speech only in the company of Holmes, Mill and Voltaire. We must rejoice that Nick Griffin of the BNP was acquitted; we should hope that an appellate court will find a way of freeing Mr Javed (the two men deserve one another).

Magna est veritas et prevalebit (the truth is great and it will prevail). That has not happened yet. But truth and freedom march together. Those who love one should love both, even if that means succouring some unlovely specimens.

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