Limiting Free Speech the Wrong Way – The FA Model

England’s Football Association has decreed that those who chant the word “Yid” in any context are at risk of prosecution as the word is “derogatory and offensive,” “inappropriate in a football setting” and “is likely to be considered offensive by the reasonable observer”. As a result, “Use of the term in a public setting could amount to a criminal offence, and leave those fans liable to prosecution and potentially a lengthy football banning order.”

Those who know me understand that I am not one to cry “anti-Semite” often. Unfortunately, that is more due to the fact that I am accustomed to the particularly unpleasant brand of British anti-Semitism that is obvious, condoned and encouraged.

It is the type where people feel comfortable to say at pupillage interviews “Oh Mr. Garson, you used to play rugby, it’s not a very Jewish thing to do.” It is found in the chortles of the Crown Court judge in Stoke, as he pushed me down the list on a Friday in November, knowing that my clerks had asked for an early hearing so I could get back to my family for Shabbat. Most disturbingly, it was the experience with the irreligious Jewish lawyer or judge, opposing my attempts to juggle practicing Judaism and the bar, to try and curry favor with the establishment.

It wasn’t being called a “Yid” that hurt on the odd occasion when playing at Ampleforth or Stonyhurst, as more often I was mistaken for being Pakistani and was abused at that level. Incidentally, I had the benefit of a fabulous group of lads on my rugby team who didn’t stand for it.

Funnily, when I heard the chants of “Yid Army” for the first time as a youngster, I felt empowered, rather than insulted. Here were scores of white men, some tattooed with stars of David, some not, standing up, being counted and shouting “I’m Spartacus.” These where the types of people, that if I saw someone like them in Manchester, I would cross the road for fear of having my skullcap spotted, yet here they were proclaiming that they would absorb that which was intended to be a badge of shame by others, and turn it into a term which could be chanted with pride.

One of the amazing things about football (soccer) is that it has always transcended boundaries. I could walk into synagogue when I was younger and hear ultra-Orthodox Jews debating whether or not Ron Atkinson needed to go or was the sending off of Kevin Moran justified. In the playgrounds of the yeshivot (seminaries) one would see young lads with peyot (side locks) and tzitzit (fringes) flying, pretending to be Ian Rush or Stuart Pearce, with allegiances not being dictated by sect but by one’s father. In London, of course, where there was a sizable community around White Hart Lane, many Jews supported Tottenham, and that is how the “Yid” term stuck.

So, how has the British establishment decided to tackle the virulent, bubbling, sniping type of anti-Jewish and anti-Zionist sentiments (I lump the same together as hatred of the Jews) that exists in the UK? It’s not by stopping the attacks on Milliband’s heritage or the Bercow baiting, which would never exist in the context of a non-Jewish politician. Neither is it by ensuring that the police prosecute anti-Semitic crimes as racially aggravated ones. And it could never be right that Jews are given leeway in the workplace to practice their religion, by observing Sabbath and the festivals.
What they have done is to outlaw chants of identity, which were responsive to anti-Semitism rather than being grounded in bigotry. I have yet to meet a Jew that has been offended by the “Yid Army” chants, but I am sure that somebody could be dug up so that the remarkably oppressive s.5 of the Public Order Act can be applied by magistrates who, whilst not being Jewish, will infer harassment, alarm or distress.

At what point does common sense kick in, where Jewish people are actually consulted by the achingly pious on the FA? Further, it cannot be right that the police are being dictated to on prosecuting standards of insults by a football regulatory body.

My experience with the Magistrates Court and s.5 is where it was used to justify an arrest by the police where a suspect insulted them in the course of that arrest. It inevitably was used as a tool of oppression rather than actually engaging with the objectives of limiting hate speech.

At its very heart, how a word is used defines whether or not it is being used in a hateful way. If the term “Yid” is being uttered incidental to an assault, it obviously should aggravate a crime. However, a potentially offensive word not being used in an offensive way cannot and should not be subject to any form of penalty. If so, that pinnacle of 1970’s rock “Play That Funky Music White Boy” would no longer be heard on our airwaves, which would be a crime.

Robert Garson
rg@gs2law.com