Glaswegian’s tweet about Captain Tom was idiotic – but he shouldn’t face jail

“Liberty of any kind is never lost all at once.”

The author of these words was David Hume. Alongside Adam Smith, Hume was a hugely influential member of the Scottish enlightenment. But over recent years, those in power in Scotland seem to have forgotten Hume’s profound words.

It would appear that it is now a crime to share offensive remarks online. I am referring to a Scottish man who is alleged to have posted a message about the death of Captain Sir Tom Moore on Twitter.

Joseph Kelly of Glasgow, is accused of posting a picture of the widely admired NHS fundraiser the day after his death, along with a message to the effect that the only good British soldier was a dead one and calling for the centenarian to “burn”. Lanarkshire police were tipped off and the man was subsequently arrested. He pleaded not guilty at Lanark Sheriff Court but has now been charged and is set to face trial in June. If he is found guilty the man faces up to three years in jail.

Kelly has been charged under the 2003 Communications Act – which makes it illegal to send a message of a “grossly offensive or of an indecent, obscene or menacing character”. The Act, which gained royal assent under Tony Blair’s Labour Party, effectively criminalises offensive remarks and jokes that are sent via the Internet.

The fact that this man was even arrested profoundly worries me. Was what he said in bad taste? Yes, I would say it was. But should the man face a potential prison sentence for the supposed crime of hurting someone’s feelings? Absolutely not. Offence is totally subjective – what one person finds offensive, another may find hilarious.

For a number of years, the country has been extending its censorious arms into the lives of ordinary people. The goal has been to curb an individual’s spicy sense of humour. In 2018, Count Dankula, the YouTuber and comedian was convicted under the same Act for posting a video of his pet dog, Buddha, after he trained him to perform a Nazi salute.

If you think these are just extreme examples of state over-reach, well, you would be right. But there’s an even more authoritarian law being concocted just for Scotland. The impact this bill will have on free speech will make any freedom-loving citizen’s blood run cold.

The Scottish National Party (SNP) is in the process of making amendments to its Hate Crime Bill. Its author, the justice secretary, Humza Yousaf, wants to make “stirring up hatred” an offence. This will effectively criminalise any individual who “behaves in a threatening, abusive or insulting manner” or who “communicates threatening, abusive or insulting material to another person.”

The idea that legislation is required to protect an individual from rude or offensive comments is illiberal and authoritarian, not to mention condescending and patronising. Even the Scottish Police Federation believes the bill’s effects are tantamount to the “policing of what people think or feel.”

The potential ramifications for comedy are worrying. Comedians challenge conventional boundaries of public taste and decency. By pushing back against the establishment and questioning received morality, they help to expand the limits of free expression. If the state becomes the sole arbiter of what can be defined as offensive, it signals the end for stand-up comedy.

It is not just the impact the bill will have on artistic freedom, far more worrying is the effect this will have on free speech. Under this bill, anything an individual reports as “abusive” could see Scottish courts packed as they deal with hundreds of potential prosecutions. If the SNP is going to effectively outlaw offence it will destroy the ability to discuss and debate challenging ideas and controversial opinions. People must be free to be offensive, that’s how we push back against an excessive and authoritarian state. Holyrood will effectively destroy one of the most cherished rights of all – the right to protest.

What I find most disturbing is that the SNP seems to think they are protecting minority groups from discrimination. In actuality they are destroying the very foundations of civil liberties.

When we discuss controversial ideas we risk offending others in our pursuit of the truth. In a liberal society, hurting someone’s feelings is a by-product. When we speak, we must be free to say what we like. If this risks offending someone, so be it.