Human beings collect words and phrases like jackdaw’s hoard shiny things, and communities use language, consciously and unconsciously, as a means of creating and maintaining collective identity. Whether this phenomenon is neutral, positive or deeply destructive depends on the circumstances and context. Without doubt, children and teenagers have been gleefully using terms which “old people” either don’t understand, or disapprove of, since hominids first began speaking. Furthermore, many oppressed minority communities have developed their own language as a means of resistance and self-protection, and for instance, Polari was spoken by gay men in the UK, partly as a means of flying under the radar when they still risked criminal prosecution.
We preface our discussion with all of this because the use of coded words and language is, unquestionably, an integral part of the human experience. How does this all play out though, when it becomes darker? What if discriminatory and aggressive speech is aimed at someone, with the intention that they will not understand it, but other people in the vicinity will? We have probably all been on the receiving end of something like this at some point in our lives, and it is uncomfortable, unpleasant and pernicious, because the victim risks looking unreasonable or paranoid if they challenge ostensibly innocent or ambiguous statements, and the perpetrator has plausible deniability. It’s a familiar tactic from school-bullies and the acolytes, but it can be employed by adults with targeted malice (we are not minimizing the seriousness of bullying within a school setting, but adolescents inflicting harm often do not fully understand the impact of their behaviour).
Attending an excellent online talk organized by UCL, and delivered by Amy Jefford Franks (link to her podcasts below), we first came across the phrase “Face the bog”. It comes from an assertion by historians of the Third Reich, and embraced by the contemporary Far Right, that Viking society drowned male homosexuals. This assertion is problematic in academic terms, but it is believed by many in a Neo-Nazi subculture, who use it to spew hate over the internet and in person. Nevertheless, because the reference is quite obscure to those outside of that world, their targets do not always immediately understand what is being said.
It occurred to us that, depressingly, this is just one example of a wider phenomenon. Slurs which are based on race, religion, age, gender, class or other characteristics are quite commonly wrapped up in the language of a hostile group, of which the target is not a part, and we have deliberately decided not to include more examples, because we have zero desire to spread the kind of memes that we have in mind. This is very distinct from the issue of microaggressions, which are felt by the recipient, whilst the perpetrator frequently remains oblivious. Here, the person making the statement is deliberately attacking a representative member of a group, often in the worst imaginable terms. Vile would be an understatement, and even if the hearer or reader does not translate the “Face the bog” to mean “People like you should be drowned”, the message is equally appalling.
All things considered, we wonder how the law should respond. It is difficult, in terms of hate speech, as many of the provisions relating to personal expressions require at least the likelihood of someone suffering harassment, alarm or distress (e.g. Public Order Act 1986 s5), and therefore, if there is no immediate understanding, it is complicated to imagine how the requirements could be satisfied. There might be a stronger possibility of establishing an intention to “stir up” of hatred on the grounds of race, religion or sexual orientation, and as a result, we would suggest that in appropriate circumstances, if the aim was that other hearers should understand and react to the statement, even though the target might not, then coded hate speech could amount to a public order offence. There are provisions which would protect someone who used words not understanding the implications, so there is no danger of criminalizing unfortunate expressions made in ignorance.
However, in the online world, very different considerations apply. There is, undoubtedly, scope to address such expressions, as the now infamous s127 of the Communications Act 2003 states:
127 Improper use of public electronic communications network
(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
Providing that it could be demonstrated that the meaning of the expression was grossly offensive, indecent, obscene or menacing, there is no requirement for a particular target on a public internet forum or platform to have appreciated the meaning.
At the same time, nonetheless, we would point out that can and does do not equate to should, and just because there are legal avenues to deal with coded hate speech, that fact alone does not mean that we should pursue them. The impact of s127 is well known following the prosecution of Mark Meecham for posting a video of his girlfriend’s pug, raising its paw in a Nazi salute. There was widespread discomfort, which we would share, about criminalizing that type of expression, and as David Baddiel observed, the video was ostensibly intended to be satirical. Undoubtedly, it was in incredibly poor taste, but Meecham has always maintained that his original attempt was to stress that the Nazi regime was evil, whilst contrasting cuteness with something abhorrent.
Meecham’s case is very relevant to the problems with criminalizing coded hate speech, because it was open to conflicting interpretations. Was it really celebrating and normalizing the Nazi regime, or was it actually a deliberately jarring juxtaposition of sweetness and horror, for comedic intent? The fact that there is scope for doubt here makes the prosecution troubling, and it was also true that Meecham was an individual, with limited economic resources, who had swapped videos with friends in a similar position. If jokes about Nazis are regarded as so damaging by our society as to warrant the State using the coercive power of Criminal Law, why is there not more outrage about “Allo, Allo” still being widely available and watched? Many of us would find that sit-com very uncomfortable viewing now for a plethora of reasons, but would we ban its sale or criminalise its distribution? Why the differential treatment between material produced and consumed by mainstream culture, and material produced by a lone individual?
Given that coded expressions are, by definition, used by subcultures of one form or another, they are always going to be at risk of misinterpretation by mainstream, majority observers. Is there a danger of the criminal justice system characterizing expressions as coded hate speech? Should police officers and lawyers become fluent with the terms and nuances of subcultures?
Our tentative conclusion would be as follows: if there is clear and unambiguous evidence that an expression is hate-speech in code, intended to victimize and harm a vulnerable minority, it should be appropriately addressed, with prosecution where appropriate. Using code to tell someone that people “like them” should be drown or gassed, for example, should be strongly condemned through legal avenues. However, where there is real doubt, the benefit of this doubt should be given to freedom of expression. The threshold of curtailing freedom of expression in any case needs to be high, and declining to criminalise behaviour is not an endorsement or affirmation of the conduct in question, but a recognition that the State should not intervene to punish it. Just because the law is not being brought to bear, this does not mean that individuals cannot and should not call out offensive and damaging comments in other ways. Drawing lines in concrete cases will be challenging at all times, and this issue graphically illustrates why balancing societal needs and individual freedoms will always be problematic
Related Articles
Microaggressions are a big deal: how to talk them out and when to walk away NPR (9/6/20)
AAVE Implicit Bias and Prescriptivism with Blazen BM Simon Roper (4/3/21)
Polari: The Language Gay Men Used To Survive BBC Culture (12/2/18)
Man guilty of hate crime for filming pug’s “Nazi salutes” BBC News (20/3/18)
Vikings are Gay Twitter (with links to podcasts)
