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J. K. Rowling challenges new Scottish hate speech legislation, openly challenging them to arrest her for calling trans criminals men who pretend to be women:
https://twitter.com/jk_rowling/status/1774747068944265615
#ArrestMe is, dare I say it, brave and powerful. At least she's putting skin in the game. It's also pretty well calculated in my opinion.
They can't really attack her for being a right wing extremist when her world famous books are a pretty clear allegory of Racism Bad. She even makes sure to target India Willoughby, who is apparently anti-black. Rowling has an enormous pot of money for expensive litigation and automatic worldwide attention on her. It's hard to righteously defend people such as
It's very practical politics to fish out the worst of the enemy milieu to preface one's normative statements. I think Rowling has a good shot at tactical victory - either the govt won't charge her or she'll win in court. On the other hand, only systemic change is going to change the progressive-leaning status quo. You need an Orban or some similar force to drag out the weed by the roots, rather than just pruning away when it grows particularly egregious. Rowling is no Orban, that's probably far too extreme for her.
The legislation is here: https://www.legislation.gov.uk/asp/2021/14/contents
Crimes include 'stirring up hate' by 'behaving in a manner that a reasonable person would consider to be threatening, abusive or insulting' to select groups. Looks like it allows nigh-limitless opportunities for selective enforcement. And a huge drain on police resources, given they can't even investigate all crimes:
https://www.bbc.com/news/uk-scotland-68703684
Why would she win? If she violates the law and is convicted there is no higher court to appeal to, there is no British constitution. She could ‘flee’ to England, which would lead to an interesting legal situation (any British police force can make arrests anywhere in the UK, so Police Scotland could in theory arrest her in, say, London and drive her back to Edinburgh, but they would be reluctant to do so for political reasons). But the only real way for her to win if charged would be for the UK Parliament to pass a law explicitly reversing the Scottish Parliament’s bill. In an election year that is unlikely, and it will be even more so after Labour win in October.
Part of the court challenge/conviction proceedings would undoubtedly be a question of whether the law as written is constitutional or not, and that's where it's likely to be quashed.
This brings its own drama though as it's not the first time the UK Supreme Court has quashed legislation enacted in Scotland for being unconstitutional - see: https://www.bbc.com/news/uk-scotland-scotland-politics-67648200
As an ignorance American I read that article and am confused. They don't have a Constitution, so how is anything unconstitutional?
The UK likes to say it has an "unwritten constitution". There have been calls for a formal constitution, but in practice there is a 'constitution', it's just not all collected in one document:
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The Supreme Court of the UK is essentially a government department that rules on whether policies, laws or sentences violate primary legislation passed by parliament. The House of Commons itself can overrule or abolish the Supreme Court at any time, convict or free anyone of anything, or do anything else by simple majority because it is singularly sovereign. Technically the Commons can be limited by the Lords and the King, but the lords have been neutered for a century and the monarchy had its last vestiges of genuine influence removed by the early Victorian era.
“Constitutional” therefore is a kind of legalese thing where a law or policy gets struck down because it conflicts with previous law passed by parliament. The Constitution is, to some extent, whatever parliament in Westminster passes, plus some procedural stuff. Of course the government can just ‘make it legal’ with a majority vote, but if they don’t explicitly override or repeal the previous legislation then they need to go back and do so.
In Scotland’s case constitutional questions related to devolution involve stuff from the original 1707 acts of union, huge amounts of precedent in the following centuries and the official devolution enacted by Tony Blair. The Supreme Court ruling Scottish law as unconstitutional is essentially the government (and thus parliament) saying that the law itself violates UK law.
The thing is that the UK’s protections for free speech in the law are pretty limited, largely either longstanding precedent or just incorporating the ECHR (which has carve outs for speech rights) into law. It’s not clear, therefore, that this Scottish law is ‘unconstitutional’.
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