The ‘Right to Offend’: ‘Pig in a Wig’ Insult Ruled Legal in an Appeal

Two UK judges have ruled that freedom of speech includes the ‘right to offend’ after feminist calls a transgender woman a ‘man’ and a ‘pig in a wig’.

The case came before the court after a mother-of-two Kate Scottow, from Hitchin in Hertfordshire, referred to a trans woman Stefanie Hayden as a man, a ‘racist’ and a ‘pig in a wig’ in a series of posts on the website Mumsnet.

After Hayden reported the incident to the police, three officers arrested her in front of her two young children. Prime Minister Boris Johnson called the arrest an ‘abuse of power’. 

In February this year Scottow was given a two-year conditional discharge and ordered to pay £1,000 in compensation to Hayden. The presiding district court judge Margaret Dodds, who found her guilty under the 2003 Communications Act, stated:

“Your comments contributed nothing to a debate. We teach children to be kind to each other and not to call each other names in the playground.”

After Scottow appealed the ruling, the case came before the Court of Appeals, which Lord Justice Bean and Mr Justice Warby presided over. The justices stated that the relevant aspects of the Communications Act: 

”were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature”.

“free speech encompasses the right to offend, and indeed to abuse another,” 

further elaborating that: 

“freedom only to speak inoffensively is not worth having.” 

The justices highlight the incompatibility of offence-focused crimes with free speech by stating:

“those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted,”

The court ruling provides a decisive blow to anti-free speech activists, who have described the ruling as ‘transphobic’. Free speech activists have celebrated the decision, suggesting that prosecuting people for voicing their beliefs is tantamount to ‘thought policing’.  

It is unclear how this ruling will influence the pre-existing legislation on ‘hate crime’, which currently forbids verbal abuse, harassment and bullying that focuses on protected characteristics such as disability, race, religion, sexual orientation or transgender identity. The current court ruling seemingly contradicts these laws. If the ‘right to offend’ is to be truly entrenched in law, much of this prior ‘hate crime’ legislation may have to be re-visited or perhaps repealed entirely.