Scotland

By Naomi Faltin

Flag_of_Scotland.svg

Official Flag of Scotland

INTRODUCTION

Scotland has won and lost parts of its independence from the beginning of its existence. This conflict of control continues today as the country recently took a vote to pursue independence from the United Kingdom in 2014. Polls revealed that most Scots are in favor of staying a part of the United Kingdom for now, and enjoy many civil rights that this region historically protects. [3] Freedom House, a self-proclaimed watchdog organization dedicated to  expanding freedom and democracy around the world, provides ratings for the United Kingdom in relation to free expression, but not specifically Scotland. According to the Freedom House records, the United Kingdom has boasted very free press ratings since 2003, a strong history of protecting free speech and press issues. Since Scotland abides by United Kingdom rulings in this area of law, Scots also demonstrate a history and a strong culture of free expression allowed and encouraged. Of course, no rating system or government is perfect. The United Kingdom as well as Scotland have been faced with several challenges specifically in the past twenty years as to how far that freedom is allowed to expand.

THE HISTORY OF SCOTLAND

The history of Scotland is a fierce and fiery one. Since its start in the Paleolithic English and Irish culture, the earliest Scots have resided in what is now Scotland since around 3900 BC.[8] The people of Scotland are often characterized by their fighting and strong independent spirit; this characterization is by no means random. Since the very first people inhabited Scotland, they have fought others for independence and freedom. In the first century, Romans invaded and won a vast majority of the world’s land, including Scotland’s close neighbors in England. When Rome attempted capture of Scotland they were quickly met with Hadrian’s Wall, a massive barrier built between the territory in modern day England and Scotland. [8] Rome was unable to maintain control or superiority of Scotland during the course of 1,800 years. [8] [11] Each century in Scottish history begins a new cycle from capture to independence, over and over again. Specifically, England and Scotland have engaged in close to 20 centuries of conflict and tension. Power struggles between England and Scotland still resonate with the citizens of these countries.

In the 21st century, the desire for Scottish independence has not been silenced. Scotland enjoys its own governmental structure, court system and self-regulation as one recognized country under their ultimate authority, the United Kingdom. Although officially recognized as an independent court system, all Scottish ruling can be overturned by the Supreme Court of the United Kingdom. Legislation called the Act of Union was signed in 1707, setting up this modern day system which unites England and Scotland parliaments. The Act of Union preserved the 1554 Scottish court system, including the highest civil court in the land, the Court of Session.[6] That said, any decision made by this Court of Session is subject to be further appealed by the United Kingdom Supreme Court, as it has been many times.

FREE SPEECH IN SCOTLAND

When it comes to free speech in this country, much conversation is allowed. It is to be expected that many of the speech freedoms and regulations are in line with the United Kingdom’s, hence Scots are very free to express themselves. The most prominent Scottish free speech censorship cases happen in response to the highly tense environments of political protest and of football matches. Political censorship is demonstrated during an event involving 23-year-old Stuart Rodger, a man who interrupted the prime minister’s speech by shouting, “no ifs, no buts, no public sector cuts!” This event happened in November 2012 in Glasgow, Scotland, and political activist Rodger was sentenced to 100 hours of community service for shouting during the prime minister’s public address. Rodger’s political speech was considered as an outburst and deemed unacceptable. Although the speech did not spark violence or damage, Rodger was accused of behaving in a threatening manner causing fear and alarm and sentenced to punishment. [4] Secondly, a prominent and controversial free speech issue arose when there was a sudden increase of hateful sectarian and anti-Catholicism threats recorded at football matches among fans. To counter this political and religious hate speech, amendments were made to the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill of 2012. The two new amendments criminalized offensive or threatening behavior the courts deemed likely to incite public disorder at football matches, and also involves ‘threatening communications.’ The communications outlines specifically ban and punish religious and sectarian hate speech at football matches. [5] Although these incidents and repression of public speech are fairly rare in Scottish society, they do occur and are punished by authorities.

In the most recent couple of years, politicized speech has occurred full throttle because of the September 2014 vote for Scotland’s independence. Before, during and after the vote, Scotland’s disagreements about whether to become independent often dominate in political discussion. There are many examples of highly tense and controversial campaigns of nationalism, loyalty and public protest encircling the question of Scottish independence. On the day of the most recent vote, several arrests and reports were filed when individuals used freedom of speech to try to intimidate voters. One instance of this occurred in Alexandria, Scotland, where the phrase “Vote Yes or Else,” was marked in graffiti outside of a Jamestown Parish church. [2] This graffiti message was not an isolated instance of intimidation, arrests or assaults that occurred on polling day. Even in 2015, several months after the national voting had occurred, there was an organized protest by a group of pro-independence activists in central Glasgow, Scotland that caught the attention of many.  Two Scottish Labour public figures had intended to engage in an election campaign in Glasgow, but due to pro-independence nationalists playing loud music, heckling, chanting and displaying a large banner reading “Red Tories Out,” the two campaigners were unable to conduct their rally or media interviews successfully. [13]  The offensive banner and behavior demonstrated the criticism and disapproval this group has with the campaigners platform. This is one of many politicized and disruptive protests conducted by pro-independence groups in Scotland. Political speech and sometimes violent speech is free flowing and protected in Scotland, but many arrests are still made because protesters use unlawful strategies to convey their messages. The fiery protestor is a common character in Scottish culture, and is often the source of media attention.

FREE PRESS IN SCOTLAND

Since Scotland has been subject to the authority of the United Kingdom, the issues and regulation of press freedom in Scotland mimic that of the U.K. The United Kingdom abolished the previously harsh seditious libel and criminal defamation laws in 2009, and has further released constraints on free expression since. [8] Historically, Scotland has enjoyed a very free press. Because of these strong protections in place for journalists and publishers, both viewpoints of the 2014 independence vote were widely criticized and resulted in no significant legal action taken against the press. Scotland, by way of the United Kingdom’s rulings, does not restrict internet access or online publishing, either. Social media have become one of the primary platforms for freedom of expression in the U.K. and has become a center for public conversation, teeming with opinions.

One historic and landmark Scottish publishing case came about in the dispute of McCann v. Scottish Media Newspaper in a case about defamation. The Scottish Media tabloid published an article in which the featured image superimposed the faces of two public figures on a lewd image. The public figures (McCann) sued on terms that this portrayal significantly damaged the party’s reputation. In the end, the public figures lost the trial on the grounds that the content of the article clearly explains that the image was tampered with and fabricated. [9] This case helped to identify the rights of persons in the Scottish public eye, as well as outline that images and the words in articles cannot be examined separately.

Controversy has arisen in the more recent years involving school authority in regulating the press, and not so much over the highly debated independence vote. Specifically, a current case involves nine-year-old Martha Payne who was banned from posting pictures of school lunches on her internet blog. This Scottish student’s personal blog functioned to criticize the state of the schools public lunch system by posting pictures and commenting about the lack of quality and options available to students. The Argyll and Bute council, who oversees the school’s zone, placed the ban on this kind of public posting. The implemented ban received almost immediate outrage and backlash from the community. The reaction caused Argyll and Bute council to reverse the ban shortly after to avoid a free press lawsuit, and Martha was free to continue writing. [5] There have been several other United Kingdom Supreme Court rulings to help expand and define the perimeters of free speech throughout the past ten years. These cases provide overarching principles that the people of Scotland must adhere to, but most of them do not involve Scottish citizens.

CRITICAL COMPARISON

When examining the civil freedoms that people in Scotland and people in the United States enjoy, there is a great amount of overlap. Both countries have legislation and court systems that mandate the protection of freedom of expression, publication, government transparency and protest. Citizens in both countries enjoy exercising these rights, as that has been demonstrated more frequently during the Scottish independence vote in 2014. According to Freedom House’s Freedom of the Press rankings, both the United Kingdom and the United States are considered to have had some of the longest-running and most free ratings worldwide. [3] That said, the United States has held strong civil liberty values much longer than Scotland has. In 1791 the United States adopted the Bill of Rights, which included explicit protection of citizen’s right of free speech, press, assembly, religion and petition. It was not until 1953 that the European Convention on Human Rights considered adopting many of these same principles that the United States of America has enjoyed for over 160 years into European doctrine. Great Britain, and therefore Scotland, had remained reluctant to sign these rights into law until 1998. The Human Rights Act of 1998 finally called for the incorporation of these civil liberties into the governing documents of the United Kingdom and Scotland. [8]

Aside from the timeline of gaining freedom of expression rights, the United States and Scotland have differing ways of handling discriminatory speech when it comes to topics of race and religion. Two sets of United Kingdom legislation lie in opposition to United States principles. The first is a Race Relations Act of 1976 which forbids the publication or distribution of written matter which is threatening, abusive or insulting to one’s race. An offense is committed also if the person uses, in any public place, speech which is threatening, abusive or insulting. [7] The United States does not have such a law, and often discriminatory hate speech is protected and allowed under the principles of the First Amendment. An example of this can be seen in Brandenburg v. Ohio, where Ku Klux Klan members hosted a rally where members called for government reform by eradicating the Jewish and African American race. The U.S. Supreme Court ruled that the speech and broadcasted footage from the event are protected by law according to the First and Fourteenth Amendments. [1] Another way in which the United Kingdom legislation censors more speech than the United States does, is in the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill of 2012 as mentioned earlier. This bill was brought on by the harshly critical and discriminatory conflict that occurred between Catholics and non-Catholics, and between members of opposing political parties during Scottish football matches. A bill like this would likely not have been passed in the United States, based on the U.S. Supreme Court opinion in Snyder v. Phelps. This case examined if, when and how religious minorities were able to express their viewpoints. Although the messages were offensive and hurtful, according to the courts opinion in Snyder v. Phelps, a public football match would be a permissible place to have open debate on the topics of religion and politics. [12]

When comparing U.S. Supreme Court rulings and the Scottish Court of Session rulings, there is agreement and similarity. For example, in the Court of Session case McCann v. Scottish Newspaper Media, the court ruled that petitioner Fergus McCann was not entitled to any damages based on the facts that the petitioners identified as public figures and because the articles were not false. Although the photographs published were misleading, the information in the body of article was entirely truthful and explained how the image was altered and manipulated. In the U.S. Supreme Court, a similar ruling would likely be made based on the precedent of New York Times v. Sullivan. In New York Times v. Sullivan, the public figure petitioner received no damages for an offensive publishing, and the opinion further defined the legal rule of actual malice in the United States court system. Actual malice is publishing false info­­­rmation with knowledge of its falsity or reckless disregard for the truth. By this definition, actual malice did not occur in either New York Times case or the Scottish Media Newspaper case. [10] Overall, the United States and Scottish freedoms are now very similar in nature. During recent years of political unrest and heated debate due to the independence question, many demonstrations and tensions in Scotland have been protected by the government. In contrast, Scotland has not enjoyed these freedoms as long as the United States, and has several United Kingdom mandates that censor hate speech.

CONCLUSION

In all, Scotland has spent hundreds of years fighting for their freedom. They currently enjoy many rights to free expression under the authority and rule of the United Kingdom, but many Scots still fight to one day be fully independent. Most historic free expression landmarks in Scotland follow United Kingdom rule and regulation, a rule that is tolerant of disagreement and conflict but not as tolerant of offensive speech towards religion and race. Most of Scotland’s current debate and conflict revolve around the recent vote for independence, and radical nationalists who push the limits of political protest. Scotland’s rich history and its proud heritage are evident when one examines the values of the Court of Session, Scotland’s political environment and the ongoing debate about independence.

CITATIONS

[1] Brandenburg v. Ohio. 131 U.S. 1207 (2011) Supreme Court of the United States. WestlawNext. Web. 15 March 2016.

[2] Christie, Kevan. (18 September 2014). Scottish independence: polling day arrests made. Scotsman: Scotland’s National Newspaper. Retrieved from http://www.scotsman.com/news/politics/scottish-independence-polling-day-arrests-made-1-3546372

[3] Freedom House, United Kingdom Country report. (2015). Freedom House. Web. Retrieved from https://freedomhouse.org/report/freedom-world/2015/united-kingdom

[4] Glasgow & West Scotland. (2 November 2012). Stuart Rodger sentenced for shouting at David Cameron. BBC News. Retrieved from http://www.bbc.com/news/uk-scotland-glasgow-west-20181601

[5] Index on Censorship. (16 November 2011). Scotland: football hate law confused and unnecessary. Index On Censorship: the voice of free expression. Retrieved from https://www.indexoncensorship.org/2011/11/scotland-football-hate-law-confused-and-unnecessary/

[6] Judicial Office for Scotland. Court Structure. (2016). Judiciary of Scotland. Web. Retrieved from http://www.scotland-judiciary.org.uk/16/0/Court-Structure

[7] Keay, J., & Keay J. (Eds.). (1994). Collins Encyclopedia of Scotland. Hammersmith, London: Harper Collins Publishers.  

[8] Klieforth, A. L., & Munro, R. J. (2004). The Scottish Invention of America, Democracy and Human Rights. Dallas, TX: University Press of America, Inc.

[9] McCann v. Scottish Media Newspapers. (1999) Court of Session. Scottish Courts and Tribunals. Print. 18 March 2016.

[10] New York Times Company v. Sullivan. 376 U.S. 254 (1964) Supreme Court of theUnited States. WestlawNext. Web. 15 March 2016.

[11] Overview of Scottish History. (2016). Official Scotland Website. Web. Retrieved from http://www.scotland.com/culture/history/overview/

[12] Snyder v. Phelps. 395 U.S. 444 (1969) Supreme Court of the United States. WestlawNext. Web. 20 March 2016.

[13] Quinn, B., & Brooks, L. (4 May 2015). Scottish independence activists ambush Labourelection rally. The Guardian. Retrieved from http://www.theguardian.com/politics/2015/may/04/scottish-independence-activists-ambush-labour-rally-glasgow

This article was last updated April 30, 2016.

 

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