"THE most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Supreme Court Justice Oliver Wendell Holmes’ famous assessment of the First Amendment delivered during the Schenck v United States case in the early part of last century, has entered the public consciousness, and is often taken as the starting point for debates on the limits of free expression.

But despite its popularity, Wendell Holmes’ essentially trite observation doesn’t get us very far. If free expression isn’t an absolute right, if it has restrictions – and that is what he is really saying – what should those restrictions be? Short of crying wolf, or crying fire and spreading mayhem, what balance should our society strike? Historical answers vary. In the US, the First Amendment has been interpreted expansively. The American constitution even protects your right to torch flags and to generate pornography – but European states have tended to approach free speech issues more gingerly.

READ MORE: Charities issue warning over repeal of Offensive Behaviour at Football Act

In many cities in Europe, if the fascists of Charlottesville had tried to troop their Nazi colours through the streets, they’d be lifted and laid behind prison bars. Denying the Holocaust will result in a similar fate in many jurisdictions. At the core of the liberal case for free expression is the idea that an open, uncensored debate is the best way of testing ideas to destruction, fining and refining our arguments, testing frontiers of the unthinkable, and challenging complacent orthodoxies wherever we find them. But the law codes of Europe reflect a second strand of thinking: that there are some things about which reasonable people cannot reasonably differ.

When it returns from its drookit summer recess, Holyrood will again have to consider where a just balance lies between free expression and competing social interests. Last week, the Justice Committee closed its consultation on Labour MSP’s James Kelly’s proposal to repeal the Offensive Behaviour at Football Act, attracting in excess of 200 submissions. Most argue the Act is mad, bad and dangerous to know. Others take the opportunity to call for the Protestant Mardi Gras which sweeps through central Scotland in mid-July to be curbed. Still others suggest the legislation is a necessary measure to combat sectarianism, or to protect minorities.

Some themes in the responses are consistent. The Act is illiberal. The common law crimes will do. The Act is discriminatory, singling out football for special scrutiny, while leaving the choruses of fans singing the Famine Song at Scottish tennis or rugby matches uncensured. This, it is said, is indicative of snobbery, or worse. Abertay University’s Dr Stuart Waiton has been a relentless critic of the legislation. His Justice Committee submission is a stark expression. Waiton writes: “I am opposed to people being arrested for words they say. It is intolerant and illiberal to criminalise words.” This is a fine tub-thumping line, but can it be right? And can any parliamentarian seriously sympathise with the sentiment? The right to free expression is not a carte blanche to prejudice criminal trials, or casually print the names of children and victims of sexual violence whose identities the court has protected. If I fire up my mobile to drop you a menacing line, my words might well be criminalised.

If I subject my neighbours to a sustained campaign of bigoted catcalls in the street, the law dubs my words racially aggravated harassment and threatens me with a significant spell in prison for them.

Free expression’s fairweather friends in Holyrood are saddling up their high horses to repeal the Act – but the legal and political analysis of why the Football Act is ghastly are just plain incoherent. On the one hand, James Kelly argues that the Act is uniquely illiberal, arbitrary and unfair. At the same time, the he also maintains that the Act’s new offences are unnecessary, “given that a number of existing offences could be used to prosecute such behaviour.” So which is it? If criminalising X is bad, and the common law also criminalises X, isn’t the common law also bad?

Since Holyrood reopened, it has been difficult to find a Scottish politician who doesn’t follow the line “I believe in free speech” with the word “but.” Whether or not you sympathise with the spirit of the law, whether or not you regard the “message” it sends as desirable, the Football Act is a mess.

At its core, it aims to criminalise hateful and threatening behaviour which is likely to incite public disorder at football. But a bungled process transformed what might have been a careful, modest public order statute into a mutant Bill, a monster. Supporters of the Act only want to talk about the spirit of the law – but fixing the letter of this faulty statute is vital. Its problems are considerable, but not insuperable.

From a legal perspective, the Act reads like a work of magic realism. Its definition of a journey to a regulated football match echoes the baffling pronouncements of a Zen mystic. An individual can to be taken to be travelling to a football match, whether or not they attended or even intended to attend the game. If the pub you are drinking in happens to be showing the Hibernian v Hearts match, you’re suddenly pulled under the Act’s provisions. If the barman changes channel to the Great British Bake Off, he turns the Act off.

During the Act’s juddering passage through Holyrood in 2011, the Scottish Government insisted it had a wizard wheeze to ensure the legislation didn’t overcriminalise football fans. To be caught, they said the offensive behaviour had to be “likely to cause public disorder”. This might have been fine and dandy – if the Government had resisted the temptation to fiddle with this test to make the law as big and as vague as possible. But instead of inviting sheriffs to consider the actual context of the football match, the Act instructs them to fill the surrounding stands and streets and carriages with touchy troublemakers, and holds the accused responsible for their entirely fictional reactions.

Worse, when weighing up the fictional trouble these fictional troublemakers didn’t cause, the Act requires sheriffs to put themselves in the shoes of a touchy, punchy soccer hooligan. As the Appeal Court dryly noted: “It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person.”

Most controversial of all, the Act criminalises, but does not define, causing “offence,” as if this was an appropriate standard for imposing criminal liability. It is, and remains, a boorach. But the legislation is not beyond repair. James Kelly has argued that only the legislative sledgehammer will do. But if you take a scalpel to the Act, if you judiciously chop out its paradoxes, you are left with the Bill the Scottish Government should have sponsored in the first place – a modest, limited public order bill, which prohibits threats and menaces and expressions of hatred which, like the cry of “fire” in a theatre, really risk sowing panic in the stalls.

It is still not too late for the Scottish Government to seize the initiative, and make it so.