Scotland’s New Hate Crime Act Imperils Freedom of Expression

While there is broad consensus that hate is on the rise in the UK and that reducing this social ill is a worthwhile objective, the extent to which restrictions on freedom of expression are a legitimate or effective means to achieve this remains heavily contested. Ultimately, these debates are about the appropriate way to combat societal hatred and the extent to which restrictions on certain rights, in order to achieve this objective, are legitimate. Scotland staked out a firm position in these debates with the controversial Public Order and Hate Crime (Scotland) Act 2021 (2021 Act), most of which remains unimplemented almost a year after Royal Assent.1 Among other things, the 2021 Act incorporates new stirring up hatred offences into Scottish law, which criminalise certain kinds of expression regardless of evidence of harm or violence being likely to result from them. This reflects a trend of incorporating broadly articulated hate speech offences into criminal law frameworks. With the exception of the United States, where content-based proscriptions on expression are presumptively unconstitutional, such offences are now commonplace in liberal democracies and raise significant free speech concerns.