Harry Potter and the Prisoner of Scotland

Thankfully, Harry Potter author J.K. Rowling has solemnly sworn that she is up to no good. As the law went into effect, Rowling made a now‐​viral series of posts on X that took direct aim at the vague, speech‐​restricting law.

The new act makes it a crime to act or speak in a way that is threatening or abusive with the intent to “stir up hatred” on account of a person or group’s age, disability, religion, sexual orientation, or gender identity. Other portions of the law make it illegal to act or speak in a way that is “likely” to stir up hatred on the basis of race, skin color, nationality, or ethnicity.

But as anyone who has studied hate speech laws could predict, criminalizing “hate speech” inevitably affects even those it was supposed to protect. Since the law has come into effect, by far, the most reported person has actually been First Minister Humza Yousaf, mostly for a parliamentary speech he gave in June 2020 in which he decried the number of white people in positions of power in Scotland. What to some is a righteous and impassioned speech about racial injustice is, to others, a racist speech that is likely to stir up hatred.

And this turnabout play isn’t surprising in the least. The first person prosecuted under the British Race Relations Act of 1965, which was designed to protect minority groups, was a black man. France’s “Lellouche” law was passed in 2004 to stop growing antisemitism and Islamophobia. But it has repeatedly been used to silence those who criticize the Israeli government and call for boycotting Israeli goods. Canadian hate speech laws have resulted in the seizure of the book Black Looks: Race and Representation by a feminist and African American scholar at Oberlin College.

Beyond just the collateral damage that the vagueness of such laws causes, other states have deliberately weaponized the subjectivity of “hate speech” to ban all sorts of dissent. Turkey regularly prosecutes those who criticize the government under its hate speech laws. Rwandan hate speech laws suppress the dissenting views of political opponents and civil society, including criticism of the hate speech law itself. South Africa’s system of apartheid weaponized hate speech laws to repress those who spoke against the evils of their government. The Soviet Union was the original champion of hate speech laws in international law, which it used to legitimize its widespread oppression and condemn the West.

So in response to the new, vague Scottish law, Rowling posted a thread on X that called out 10 situations in which transgender people were able to harm or take advantage of women. The thread pointed out the importance of biological sex rather than gender identity when dealing with various public policy issues, including sexual violence, prisons, and sports, and dared authorities to “#Arrest Me.” And this isn’t the first time she has spoken out about her beliefs, spawning various efforts to cancel the author.

But throwing down the gauntlet seems to have worked, as Scottish police have announced that they will take no action against Rowling, to the frustration of various political figures and activists who reported Rowling’s posts for stirring up hatred against transgender people.

This open rebellion has exposed what former American Civil Liberties Union President Nadine Strossen has described as the “intractable problems of vagueness and overbreadth that plague ‘hate speech’ laws.”

Such laws “uniformly vest enforcing officials with enormous discretionary power and have consistently been enforced to suppress unpopular views and speakers, including political dissent and minority speakers,” she wrote in her book Hate.

While the Scottish government is attempting to suppress hate speech that shall not be named, the resistance of brave writers such as J.K. Rowling can hopefully put an end to this curse on the freedom of speech.