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When Expressing Your Opinion is a Crime
by Professor John Kersey

Special to L. Neil Smith's The Libertarian Enterprise

The Daily Mail reports that solicitor Danielle Morris has been fined £2,500 and ordered to pay £5,250 in costs by the Solicitors' Regulation Authority on a charge of racial and religious discrimination. A previous complaint against her and her former employer arising from the same matter resulted in an undisclosed settlement being paid. It is reasonable to suppose that this was not an unconsiderable sum.

What had Ms Morris done to merit this action? It transpires that she uttered the words: 'I cannot stand Jewish people,' and then briefly defended that opinion when challenged by a colleague. When the matter was escalated, Ms Morris initially denied making the remark. Subsequent attempts by Ms Morris and by her employer to apologize for any offence caused were refused in favour of legal action by her former colleague, a process that resulted in three and a half years of investigation and proceedings.

Ms Morris expressed an negative opinion—one that many would consider obnoxious—which she has said was formed as the result of an incident of queue-jumping by an Orthodox Jewish man in which she was the victim. But it is important to note what she did not do as well. She did not deny or debate the Holocaust. Nor did she state that she supports anti-Semitic violence, or groups which promote anti-Semitism. She has subsequently made it clear that her remark was made without a full consideration of its implications. One might say that it was made in the heat of the moment.

In a free society, an individual must be permitted to state that they personally dislike any group, whether its composition be racial, religious or otherwise, and must be free to criticize aspects of that group, including expressing personal opposition to its beliefs and practices. The law should not be able to intrude into matters of personal opinion, whether or not that opinion is soundly based. Secondly, a person should not be able to claim that they have been discriminated against by virtue of another expressing a simple dislike of any group to which they belong or for which they feel a particular solidarity. To reduce discrimination to a matter of mere offence is to demean genuine cases of racial and religious hatred that do not just involve words, but acts. Lastly, where a remark of the nature reported is made in the heat of the moment and it subsequently emerges that it has caused offence, an offer of an apology should be accepted by a court or tribunal as an appropriate restitution without the need for financial redress, having an eye to the desirability of preventing further claims of this nature escalating to this level in the future. The long-established maxim that de minimis non curat lex seems to have fallen by the wayside in discrimination cases. To prosecute trivia is tyranny.

We should note that Ms Morris's lawyer is reported to have stated that his client had "'not been aware' of the long history of the persecution of Jewish people.' and that 'Because of her age she has had limited direct contact with those who had been familiar with the discovery of the horrors of the holocaust or the attitudes which had led to these events. She now has a greater understanding of the offence she had caused and the context in which her remarks could be seen."

It is entering dangerous territory when every unfavourable reference to the Jews, or every criticism of Israel, is treated as an assault on the memory of the Holocaust or an incidence of anti-Semitism, and merits the kind of defensiveness that the observations above show. To treat it thus, particularly in the case of an isolated unguarded remark expressing someone's personal opinion, diminishes that which should be treated with seriousness. It also plays into the hands of those who have a much more developed agenda against the Jews than Ms Morris, who will claim that this is a case of "over-sensitivity" and further proof of a "Jewish desire" to ensure that debate of these issues is conducted solely on their own chosen terms.

There are still cases of genuine anti-Semitism in our society, expressed in verbal and physical expressions of violent hatred. More generally, there seems to be a prevailing Left-driven cultural animus that finds expression in support for Palestine and opposition to Israel, a position that looks at times like an intellectual justification for what in any other context would be anti-Semitism pure and simple, particularly since Hamas, the terrorist group that currently runs Palestine, calls for the murder of Jews and the obliteration of Israel. The 2011 organized pro-Palestinian disruption to a Prom concert by the Israel Philharmonic Orchestra, one of the great ensembles of the world, is an example of this. I also question the involvement of publically-funded academics in boycotts of Israel, which have rightly been pointed out as Stalinist behaviour of the most illiberal kind. It is difficult to see Ms Morris's comment as being on the same level as any of this.

It occurs to me that we are edging dangerously close to a point which Belgium has reached, where it is currently being proposed by six senators that the law should protect Islam to the point that, "A person would be guilty if he "considers Islam to be violent, threatening or supportive of terrorism..." or "considers Islam to be a political ideology, used for political and military purposes to establish it hegemony." [sic] It is significant that the phrasing of these resolutions does not specify that these beliefs should be denoted by acts, or spoken words. It is enough to "consider" them. The very thought is deemed a crime. When we have reached that stage, we will truly be lost.

Contact Prof. Kersey via Sean Gabb [email protected]