The Crime of Leafleting

In Britain, five Muslim men from the East Midlands city of Derby have been put on trial for the composition and distribution of leaflets. The literature — entitled “The Death Penalty?” — contends that gay sex is a sin that leads its practitioners directly to hell; it also calls for homosexuals to be given the death penalty and features on its front side a picture of a mannequin hanging from a noose. The prosecution is the first under a new “hate crime” law passed in March 2010 that makes it illegal to “stir up hatred on the grounds of sexual orientation.”

In court, prosecution lawyer Bobbie Cheema told a jury comprising seven men and five women that the leaflets were “threatening, offensive, frightening, and nasty.” She is right; they are exactly that. But one has to ask the question: So what? “Offensive” they may be, “nasty” too, but there is a world of difference between material that is repugnant and upsets people — an inherently subjective designation — and acts that are physically harmful, and to which one can apply a proper legal objectivity. Note that the men are not being prosecuted for inciting violence; the leaflets call for the death penalty, not for vigilante attacks.

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