“Hate speech” and theatre of the absurd

In England, it’s a crime to call someone a “f___ing black c___.” If you think I’m making this up, ask John Terry, the English soccer star who was just found not guilty of saying this to Anton Ferdinand, an opposing player, during a contentious match.

Terry didn’t come away unscathed. He lost his captaincy of the England national team when the Crown decided to prosecute him.

But one needn’t feel too sorry for the player, and not just because of his pattern of prior conduct. He probably did abuse Ferdinand with a racial comment; the prosecution simply couldn’t meet the burden of proof that applies in a criminal case. And losing the captaincy is not necessarily an unreasonable penalty for this kind of remark.

Being tried for a crime is. Terry made the remark at issue in the heat of battle, after Ferdinand taunted him for “shagging” the partner of a teammate (Terry is “guilty as charged” of that).

Moreover, Terry almost certainly is not a racist. One need only watch the way his black teammates at Chelsea respond to him. One of those teammates, Ashley Cole who has played alongside Terry for years for club and country, was a star witness for the defense. “We shouldn’t be sitting here,” said the great left-back, in perhaps the truest words uttered during the proceedings.

Terry’s racial remark (if he made it, as I believe he did) was akin to getting angry at a fat person and calling him a “fat ____.” It doesn’t mean you dislike fat people; it just means that, in the heat of the moment, you used the person’s most obvious physical characteristic as part of your expression of anger.

In any case, racism is not a crime. And even if Terry had not been provoked, a free society should not criminalize speech, however odious, without more.

Moreover, the Terry trial shows the extent to which the judicial process is demeaned by this sort of prosecution. Ferdinand didn’t hear Terry’s alleged comment. But video showed that Terry seemed to utter the offending words. Terry’s defense was that he was responding to an alleged accusation by Ferdinand that Terry had called him a “f___ing black c___.” He uttered the offensive phrase as part of his denial to Ferdinand that he said any such thing, or so Terry’s story goes.

Naturally, the trial became something of a circus. Lip-readers were brought in to testify about what the video showed Terry to be saying. Ferdinand testified about how distraught Terry made him feel. Terry’s character was vouched for, and so forth.

This theatre of the absurd lasted for five days. Surely, there are better ways to use judicial resources than to litigate over the content of a comment that the victim did not even hear. Surely, a society that obsesses to this degree over a few words is an unserious society.

In the end, the Chief Magistrate Judge ruled that the former England skipper is not guilty. Finding Terry a credible witness, he said:

There is no doubt that John Terry uttered the words ‘f****** black c***’ at Anton Ferdinand.

When he did so, he was angry. Mr Ferdinand says that he did not precipitate this comment by himself accusing Mr Terry of calling him a ‘black c***’. I accept that it is possible that Mr Terry believed at the time, and believes now, that such an accusation was made.

Even with all the help the court has received from television footage, expert lip readers, witnesses and indeed counsel, it is impossible to be sure exactly what were [all] the words spoken by Mr Terry at the relevant time. It is impossible to be sure exactly what was said to him at the relevant time by Mr Ferdinand.
It is therefore possible that what he said was not intended as an insult, but rather as a challenge to what he believed had been said to him.

For a small part of the relevant time, the camera’s view of Mr Terry was obstructed. It is a crucial fact that nobody has given evidence that they heard what Mr Terry said or, more importantly, how he said it. His account has been subject to the most searching and thorough questioning.

In those circumstances, there being a doubt, the only verdict the court can record is one of not guilty.

The verdict brought cheers from onlookers, but Ferdinand’s mother is said to have appeared shell-shocked. What a royal waste!

I don’t believe that such a prosecution could proceed in the U.S., thanks to the First Amendment. However, similar proceedings have occurred here, for example, before college disciplinary boards.

And they also occur in federal court. Under Title VII, which prohibits employment discrimination, allegations regarding utterances such as Terry’s, and indeed significantly less offensive ones, are often litigated under the rubric of racial or sexual harassment. And since the litigation is civil rather than criminal, it need not be shown beyond a reasonable doubt that the alleged statements were made. A simple, uncorroborated “she says” may well be sufficient to result in liability, even if contradicted by a “he says.”

Thus, as in Britain though to a lesser degree, the robustness of our society is being reduced by ridiculous litigation over “hate speech.”

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