Top academics debunk viral claims about the Scottish Hate Crime Act

The Hate Crime Act came into effect on Monday and has sparked debate from a number of prominent figures, including JK Rowling, Elon Musk and Joe Rogan.

A protest also took place outside Holyrood earlier this week while Community Safety Minister Siobhian Brown said a “fake” complaint had been submitted in her name.

The National has spoken with both senior law lecturer at Glasgow Caledonian University Dr Nick McKerrell and law professor at the University of Glasgow James Chalmers about a number of posts spreading misinformation about the bill.

Elon Musk and Ian Miles Cheong

We told earlier this week how Humza Yousaf hit back at both Elon Musk (below) and Joe Rogan for their criticism of the new legislation.

Specifically, Musk said the post was misguided, sharing a post on his site based on media reports claiming artists and comedians would be targeted, writing: “An example of why it’s important to preserve free speech.”

However, Musk also interacted with a post from right-wing influencer Ian Miles Cheong who claimed in a post on Twitter/X: “Repeat a joke you heard online, or show someone a spicy meme or commentary of a transgender person or mass migration on your livestream, and you too will be arrested.”

McKerrell explained: “That doesn’t come close to the burden of criminality which is in the act, which is that you’ve got to be threatening or abusive in your comments and in Scots law that generally means you’d be causing alarm to the individual with your actions and your words.

​READ MORE: BBC: Scottish minister says 'fake' hate crime complaint submitted

“The section of the law which deals with stirring up hatred also gives a defence of being offensive, shocking or disturbing under freedom of expression which is protected under the European Convention on Human Rights.

“So in terms of jokes and so on that falls into that category of being offensive or shocking rather than causing fear or alarm to the individual.”

Speaking specifically about Cheong’s reference to mass migration, McKerrell added: “I don’t know what the mass migration bit is on about unless you were making comments on people’s nationality or racial background.”

Joe Rogan

Yousaf also hit back at US podcast host Rogan, who said in a recent episode of his show: “You see that wild s*** in Scotland, where they are targeting comedians with hate crime laws?...

“Jesus Christ Scotland, you have one of the biggest comedy festivals on earth, this is just ridiculous.”

Both McKerrell and Chalmers explained that the bill is not explicitly designed to target comedians.

“Hate crime, like any other crime, can be committed anywhere, it can be committed on stage although that’s not particularly likely,” Chalmers said.

“There’s no exemption whereby comedians are immune, but there’s no evidence that Police Scotland have any interest in targeting comedians.

“And again, the right to make jokes, even offensive jokes, is protected by human rights law and explicitly referred to.”

McKerrell meanwhile added that there is a specific defence outlined in the legislation which many comedians might turn to.

“That’s clearly not the case because in the defence I’ve outlined, being shocking or disturbing is ideally suited for comedians to use as a defence because many do argue that they’re trying to shock or be offensive.

“What I think (Rogan) is referring to is a method of communication could be a stage show. It does include performance but it has to cause fear and alarm or be threatening and abusive which you would hope is not the purpose of any stage performance.

“It’s a misunderstanding of the definition and ignores the defences inbuilt into the hate crime law.”

Zac Goldsmith

Tory peer and former Foreign Office minister Zac Goldsmith was among those to take to Twitter/X to discuss the hate crime legislation.

He posted a tweet in relation to Harry Potter author Rowling, with Police Scotland recently saying there would be no action over her social media posts about transgender issues.

In a post, Goldsmith said: “@jk_rowling is taking risks on behalf of all Scotland – women in particular.

“It’s hard to believe any politician thought it a good idea to intro these Stasi laws but they have & they can be stopped – if enough people openly challenge them as JK has.”

Responding to this McKerrell said it was “inaccurate” to compare the new laws to the Stasi.

“I assume what he means is that it’s about regulating thoughts or things that people say, but it’s not the case,” he said.

“It’s regulating speech that promotes threatening or abusive language against an individual because of their protected characteristic which has existed for decades in Scotland for people because of racial or national background.

“It’s not interfering fundamentally with people’s thoughts or people’s speech, what it is doing is regulating that to prevent hate against people because of different elements of their characteristics.”

JK Rowling

Rowling has been one of the most prominent critics of the legislation, having previously said she would “look forward to being arrested” when she returns to Scotland.

She also declared: “Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal.”

However, Police Scotland have explained that her comments are not assessed to be criminal and that no further action will be taken.

Chalmers explained: “I think what she said was, if you like, a public challenge, rather than her believing what she said would result in an arrest.

“A lot of people have thought for whatever reason that misgendering trans people is in itself enough to be an offence, that’s never been the case. It’s not clear where that interpretation of the law has come from.

“Nothing she did was ever likely to meet that threshold.”

READ MORE: Moral panic over Hate Crime Act is doing Scotland no favours

McKerrell agreed and added: “In a way it shows the claims that were made about the law that everyone is going to be arrested or that it’ll be a crime to offend, to tell a joke, have been disproved because the material she put forward was, I would say for some people, pretty offensive but it wasn’t criminal because it didn’t meet the target of being threatening or abusive in terms of an individual on the basis of their protected characteristic.

“It wasn’t criminalised so it does show a broad range of defences in this law on freedom of expression.”

Murdo Fraser

Fraser hit headlines recently over what’s referred to as a “non-crime hate incident” – that is the policy of recording “hate incidents” that do not meet the criminal threshold.

The Tory MSP (below) said he had threatened police with legal action after being logged for a complaint about a post in which he stated that “choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat”.

However, Community Safety Minister Brown pointed out: “The recording of hate crimes or incidents has got nothing to do with the legislation that came in on Monday so I just want to make that very clear.”

Chalmers explained: “It’s not something that flows directly from the hate crime legislation, but it is inherently linked to it because it falls under reports of things people think are hate crimes.

“In Scotland, we haven’t had an official change in policy with this so it’s not very clear at the moment how Police Scotland will deal with these reports and that’s the issue Murdo Fraser is challenging here.”