Kneecap and Bob Vylan shouldn't be prosecuted
Should we indulge Bob Vylan in this way? My north star here is the Brandenburg Test, which was established in the US Supreme Court case of Brandenburg vs Ohio (1969). This was a First Amendment challenge to the prosecution of a member oftheKu Klux Klan called Clarence Brandenburg for threatening the President, Congress and the Supreme Court with violent reprisals if they continued 'to suppress the white Caucasian race'. The Supreme Court found for Brandenburg on the grounds that providing speech isn't 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action' it is protected. It seems clear that calling for the death of the IDF, while clearly abhorrent, is not likely to produce imminent lawless action. Incidentally, the same applies to Lucy Connolly, the wife of a former Tory councillor and mother of one who was sentenced to 31 months in jail for a single tweet about burning down asylum hotels. Given that she didn't name a particular hotel and added the caveat 'for all I care', her post wasn't likely to incite imminent lawless action either.
Nevertheless, could Bob Vylan be prosecuted under UK law, a question currently being considered by Avon and Somerset Police? One suggestion is they may be guilty of an offence under the Public Order Act 1986: intending to stir up racial hatred, which is what Lucy Connolly was prosecuted for. In their defence, Vylan could argue that the IDF is a military organisation, not a racial group, and Lucy Connolly could have made a similar argument about asylum seekers if she had pleaded not guilty – they're not a distinct racial group and therefore she wasn't being 'racist'. But, interestingly, Lady Hale ruled in R vs Rogers (2007) that, for the purposes of deciding whether an offence is 'racially aggravated', the definition of 'racial group' included 'foreigners', even if that group contains people of many different ethnicities. I think the prosecution in Lucy's case would have argued that Lady Hale's definition of 'racial group' applies to the 'stirring up' offence, not just to racially aggravated offences, but it would be hard to run a similar argument in the prosecution of Bob Vylan.
While I think the punk rap duo will probably escape prosecution, I'm not so confident about Kneecap. They, too, are being investigated by Avon and Somerset Police for their behaviour at Glastonbury over the weekend. The incident in question was the band calling on their fans to riot outside Westminster Magistrate's Court where the lead singer, Liam Óg Ó hAnnaidh, is due to go on trial for allegedly displaying the flag of Hezbollah, a proscribed terrorist organisation. That could be another offence under the Public Order Act, namely inciting a riot. On the other hand, prosecuting a person for that offence requires the consent of the Attorney General, and Lord Hermer may withhold it.
What Kneecap said last week comes closer to failing the Brandenburg Test. They weren't just inciting riot in general, but asking their fans to riot at a particular time and place. Under Brandenburg, inciting imminent lawless action isn't sufficient; it has to be likely to take place as a result of the speech in question. Is it probable that Kneecap's fans will riot outside Westminster Magistrate's Court when the lead singer goes on trial? Given that their fans are mainly middle-class soy boys who would run a mile from violent disorder, that seems unlikely. And to be fair, the band did insist afterwards that they were 'only joking'. Lucy Connolly deleted her unpleasant tweet and apologised for it, but the Attorney General, who also had to sign off on her prosecution, extended no such latitude to her.
Overall, my position is clear. Bob Vylan and Kneecap should not be prosecuted for their remarks at Glastonbury and Lucy Connolly should be given a pardon and set free. But to bang her up for over two-and-a-half years and do nothing about these posing pop stars does seem like another example of two-tier justice.
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