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Rethinking the Katie Hopkins Affair

29/04/2015 22:56 BST | Updated 28/06/2015 10:59 BST

On Friday the UN Human Rights Chief called on authorities and media regulators in the UK to take action against incitement to hatred occurring in British tabloid newspapers.

He was speaking in response to the Sun columnist Katie Hopkins' remarks about migrants and asylum seekers − that they are 'cockroaches,' 'a plague of feral humans,' 'spreading like norovirus on a cruise ship'.

There are reasons to think that the Crown Prosecution Service (CPS) could pursue a case against Hopkins if it so desired.

The UK offence of incitement to racial hatred requires, amongst other things, that the words or behaviour be 'threatening, abusive or insulting'. Her words were certainly abusive and insulting. And perhaps threatening too: 'I'd use gunships to stop illegal migrants.'

The offence also refers to 'racial' hatred but this is defined to cover 'colour, race, nationality (including citizenship) or ethnic or national origins' − and it is feasible to think that immigrants could be a group defined by their non-citizenship of the UK.

Plus the offence does not require proof of intention to stir up racial hared, merely that 'having regard to all the circumstances racial hatred is likely to be stirred up thereby.'

Perhaps the main sticking point is showing that hatred was likely to be stirred up. Taken literally, how do you show that Hopkins' words created hatred where previously there was no hatred? Surely most readers who either hated or didn't hate migrants before reading the piece still had the same attitudes after reading it.

In other words, it is quite possible that Hopkins' piece was ineffectual hyperbole. And that the only opinions it changed were people's opinions of her.

At any rate, the real question raised by the Hopkins affair is this. What type of hate speech laws do we want (or not want)? Do we want the type of laws that would allow authorities to pursue prosecutions against hate speakers simply by showing that they had used hate speech without also having to show that they had intended to or were likely to stir up hatred?

Clearly what she said was hate speech. It exhibits familiar tropes that have existed for centuries and across the world. That the objects of hatred are inhuman, like animals, unwanted, unequivocally bad for the country. And that any particular qualities or experiences of the individuals concerned are superseded by the overarching essential property attributed to the group to which they belong, as 'black', 'immigrant', 'Muslim', 'homosexual', etc.

In some countries, the criminal law allows prosecutions for the use of such hate speech alone.

In my recently published book, Hate Speech Law: A Philosophical Examination, I attempt to de-homogenize hate speech law into different clusters of laws.

I argue that only when we come to understand that hate speech law in other parts of the world is very different to our own can we begin to see the strengths and weakness of different versions of this broader family of regulations. And to understand the true nature and implications of the various principled arguments that may be presented both for and against it.