The political Right throughout the Western world is baying to lock up all opponents of genocide. The very notion of free speech is under fundamental attack. We need to take a long hard look at the question of imprisoning people for saying things.

Lucy Connolly, a 41-year-old mother of a 12-year-old, was imprisoned for 31 months on 17 October 2024 under the Public Order Act 1986 for publishing material intended or likely to cause racial hatred. There is no doubt that she did this. In an immediate reaction to the stabbing to death of three young girls in Southport, she published a tweet calling for the burning down of hotels housing asylum seekers, specifically with the inhabitants still inside. This is a textbook example of hate speech directed at a vulnerable group.

Connolly’s remarks were part of an emotionally charged social media storm in the immediate aftermath of the murders, which included false allegations about the killer’s status and religion. There is no doubt that Connolly crossed a line of incitement to violence. She is an avowed racist – she has a history of racist tweets – but I do not think she should be in jail.

PRISON DOES NO GOOD

My first argument is that prison does no good whatsoever, and it will likely reinforce Connolly’s racism.

When imprisoned for four months for publication myself, I learnt that our overcrowded prisons are chock full of the left-behind members of the working class – 80% of them addicts by official reckoning, and still higher in my experience – born into poverty and addiction, and ill educated.

Many were there for domestic violence yet they were now locked into a community which supported and reinforced their violence. I personally witnessed inmates recounting their crimes against women to other prisoners, who sympathised and told them the world was crazy when you could be locked up for keeping women in their place or punishing them for infidelity. The general consensus was that women needed to be kept down more so they would not go to the authorities.

We punish people by locking them into the one community which is guaranteed to support and encourage their wrongdoing: then we are alarmed at re-offending rates. Over 50% of prisoners who serve sentences of less than three years, are caught re-offending within six months. I have no doubt that Lucy Connolly has found the company of those who are fuelling her racism and hate. What good is this doing to anybody?

Our system of criminal justice, with massively overcrowded jails and the highest proportion of our population in prison in all of Europe, is a Victorian abomination, a senseless retributive regime. Anything that you have ever heard about education or rehabilitation in jails is a lie. In practice no such functioning schemes exist.

The authorities are concentrated entirely on ever-greater movement and living-condition restrictions for prisoners, to keep a lid on the overcrowding powder keg and try to staunch the flow of drugs into jails. To give one example, books were forbidden to criminal prisoners in my jail lest their pages be soaked in drugs.

Prisons are themselves a form of institutionalised violence. The beds made from solid iron sheet and two-inch-thick non-resistant foam mattresses are a deliberate corporal punishment – I am left with permanent back pain.

This is an inappropriate, worthless and brutal regime. In Lucy Connolly’s case, I make no apologies for saying that when you separate a mother from her child, you are also punishing the child, and imposing an anguish upon the woman which men can only partially comprehend.

Imprisonment should be a last resort to protect society from those who otherwise pose a definite risk of physical violence to others.

A rational society would find far more useful means to punish Lucy Connolly.

Community service would let her still be with her child and provide an element of restorative justice. She should also be made to spend a substantive amount of working time – as in several months – in the company of immigrants and learning about their lives, perhaps in some of the Mosques that play a large part in our communities. She should meet asylum seekers and hear their stories.

Education and restoration should be central to any form of justice. The irony is, of course, that Lucy Connolly’s supporters are, by and large, the last people who would support such reform in general. That should not deter us.

THE LIMITS OF FREE SPEECH – IMMEDIATE HARM

The classic position in western jurisprudence is that free speech should be limited where it is liable to cause immediate harm, which cannot be countered in reasoned debate by other arguments because there is no time. That is the basis of the famous judgment by Oliver Wendell Holmes in 1919 that

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic

Here it is not stating a falsehood which is the problem. It is doing so (assuming knowingly) in circumstances which may cause immediate physical harm through the effects of panicking a crowd. This judgment established the “clear and present danger” test.

Which is the same principle as set out by John Stuart Mill in On Liberty:

No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.

Here it is plain that immediacy and context are important. Saying something in one circumstance may be acceptable but the same words may not be acceptable in another circumstance. It separates debate from direct incitement to violence.

This nuance is completely lost, for example, in the UK’s Terrorism Act. The proscription which is in train will make it illegal to argue, even in calm debate, that Palestine Action is engaged in legitimate protest and ought not be banned. Just expressing that opinion, even in an academic setting, might get you imprisoned. Mill would be appalled.

Superficially, Mill’s example may seem to indicate that Lucy Connolly is indeed highly culpable. She was urging people to set fire to hotels housing asylum seekers, and right-wing rioters did in fact attempt to do just that. But it is not quite that simple. Lucy Connolly tweeted on the day of the murders. No mobs had yet gathered and the attacks on hotels were still several days away.

Hindsight is wonderful. It is not plain that there was a “clear and present danger” that this would come to pass, at the time she wrote – and she deleted her tweet after a few hours. She actually put out tweets against the violence once it started some days later.

Furthermore, to compare Mill’s 19th-century circumstance with a 21st-century social media post requires care. Mill was imagining someone in the position of a leader – able to access the platform as an orator to the mob, or alternatively to get an article or letter published in a newspaper. In the melee of social media, Lucy Connolly is perhaps more akin to a member of Mill’s mob than the person urging it on to action.
Connolly probably did not envision at the time of her tweet that mobs actually attacking hotels was likely to arise some days later. She deleted her tweet after three and a half hours, once she calmed down, and did not repeat it when actual mobs existed. Once they did, she put out other tweets including “I know people are angry, but violence is not the answer” and “Protest yes, violence no”. She also apologised for having spread disinformation.

Connolly’s initial tweet was an incitement to violence, and goes beyond contribution to public debate on the role of immigration in events like the Stockport media. It is culpable and I think on balance does rightly fall foul of the law on those grounds. But I think it is rather marginal on the clear and present danger test. The evidence is non-existent that any member of the mobs who went out a few days later were in fact critically motivated by Connolly’s tweet. This lack of clear causality should be given more weight (which is not a necessary step in the legislation).

My conclusion: the conviction is correct as it was incitement to violence, but the sentence is disproportionate to the seriousness of the offence.

Let us then compare this to the statements by the group Bob Vylan at Glastonbury, which are under investigation by the Police and which the entire British Establishment has rushed to condemn.

This is entirely clear: “Death, death to the IDF” chanted to a live crowd at Glastonbury clearly does not pose an imminent threat. There is no clear and present danger. Nobody in the Glastonbury audience was in a position immediately to attack the IDF, and I can see no serious argument that anybody in the TV or online audience would immediately attack the IDF, who was no already in a position and of a mind to do so.

The argument that attacking the IDF is a legitimate aim I cover below.

There is simply no case to prosecute the members of Bob Vylan on the basis of imminent threat or “clear and present danger” from their speech.

HATE SPEECH

The classic liberal defence of all speech which does not pose imminent danger has been replaced in much of the Western world in recent years by a tendency to ban “hate speech”, generally defined as speech expressing hate towards a protected group defined by gender, race, sexuality or other qualifications.

That intellectual shift against free speech has been broadly driven by the “Left”, particularly by anti-racist and feminist groups. However the incorporation of this principle into the Public Order Act of 1986 was enacted by the Thatcher government. Thatcher had a thorough understanding of the dynamics of hard political power.

I am generally not in favour of the banning of “hate speech”. I agree with Mill that the answer to an incorrect opinion is to engage with it and refute it, not to ban it. Banning it is often counter-productive as it both glamourises the opinion and prevents its proper deconstruction.

This is where I shall part ways with much of the Left, which will believe that Lucy Connolly should be locked up for hate speech. But here we encounter the problem of who defines what is hate speech?

The Right is screaming that “Death to the IDF” is hate speech that indicates a generalised hatred of Jews. There are several answers to that, including that the IDF is a military force committing Genocide and is by no means supported by all Jews.

But in a real sense, once you have got into the argument of why Lucy Connolly’s hate speech is wrong and Bob Vylan’s speech – characterised by the political Establishment as hate speech – is right, you have already lost. You are making distinctions of geopolitical analysis. Essentially you are arguing as to whether the political value judgments of the left or the right are correct.

With the state as, literally, the judge, that argument will only be resolved one way in the real world.

It was in fact the push from the left for hate speech laws which destroyed the western consensus in favour of freedom of speech which does not initiate immediate physical harm. Which was extremely stupid of the left, because it should be blindingly obvious that once you hand the state the power to imprison for speech, it is the left who will be the primary target.

Most foreseeable of all was the use by the Zionist lobby of its power in the state to seize upon the criminalisation of “hate speech” to conflate criticism of Israel with anti-semitism and attack pro-Palestinian sentiment. The Left made this rod for their own back when they led the charge against freedom of speech
In my view, political opinions, even ones I find hateful like racialist attacks on asylum seekers, ought not be criminalised but ought to be tackled in Mill’s field of debate. An opinion with which we disagree should be countered by argument and refutation, not by banning its expression.

At present, the toxic mix of culture war and criminalisation of speech is giving far too much power to a state which I in no way trust.

PRACTICAL EFFECTS

We are currently facing a unified neoliberal political Establishment which is introducing more and more restrictions on protest and speech and which delights in locking up its opponents.

This same Establishment has used, throughout the world, the tools of state control of economies to massively increase the wealth gap between the billionaires who are actually in control, and the 99.5% of society who are reduced to helots.

As a result of the social tensions thus unleashed, there has been a fracturing of support for the traditional political parties, which have all been captured by this neoliberal agenda. However the Establishment has managed to defend itself by the use of media and social media to channel popular discontent at popular poverty and loss of status into hatred for immigrants. Scapegoating has been simple but deadly effective.

The factors of social alienation which drive support for right-wing movements like Reform are the same factors which, more properly understood, motivate the Left to campaign for greater social equality. Excessively punitive actions against the misled foot soldiers of the right simply feed in to the right-wing narrative of dispossession and unfair treatment.

In short, the imprisonment of Lucy Connolly has been the best recruiting tool that alt-right leaders like Nigel Farage and Tommy Robinson have been given.

We should not fall into this trap.

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