Free speech is a precious right - but not an absolute one - Nigel Nelson

He shocked Rome by marrying a Vestal Virgin to cock a snook at priestess purity, enjoyed cross-dressing, and tried to surgically transition, another horrifying concept to Roman sensibilities though nowadays he’s sometimes lauded as history’s first transgender champion.

He was able to get away with all this, at least until his assassination by Praetorian guardsman preempting his order to execute them, because the emperor’s power was total.

I was reminded of Roman emperors because of the accusations swirling around Keir Starmer that he is too authoritarian in putting his foot down on rioters, and leading an elected dictatorship earning the PM the nickname Keir Stalin.

Starmer was DPP when the 2011 riots broke out and learned how swift and exemplary punishment, and maximum publicity for it, was the best way to deter future unrest. In dealing with today's street violence he's acting as the public prosecutor he once was as well as the prime minister he now is.

Fingers crossed, it has worked.

The next stage of this strategy is to tackle the social media platforms stoking up riots, whether by influencers starting one by simply posting a time and place for it, or spreading misinformation and repeating online hate. This has riled the free speech brigade, with Reform UK leader Nigel Farage saying the PM “poses the biggest threat to free speech we’ve seen in our history.”

Free speech is a precious right, but not an absolute one. We’ve never been able to go around saying exactly what we like. Libel laws stop individuals being defamed while contempt of court rules ensure fair trials.

Nor is free speech a licence for Islamophobia or antisemitism - the reason Education Secretary Bridget Phillipson put the Higher Education (Freedom of Speech) Act 2023 on ice. She said the “legislation could expose students to appalling hate speech on campuses.”

It‘s all a matter of getting the balance right. Phillipson thinks this law unworkable as it stands and wants to come up with something better. We should hold our tongues until we see what that something is.

Meanwhile, people are being hauled off in handcuffs for something they’ve posted, or even reposted. So here’s a get out of jail free card. Remember posting is publishing. It's not the same as talking to a mate in the pub. And if a post has so much as a whiff of hate crime about it - that’s hostility and prejudice against an identifiable group of people - steer clear.

But it can become more difficult when attempts are made to pin down specific hate crimes with definitions - such as antisemitism and Islamophobia.

Parliament’s all-party group on British Muslims suggested in 2019 that Islamophobia was “racism that targets Muslimness”. That immediately ran into problems.

For starters it’s not compatible with the 2010 Equalities Act which says racism only applies to colour, nationality and ethnic origin. And it could outlaw criticism of Islam as a religion which really would be an infringement of free speech.Yet police and government have adopted the International Holocaust Remembrance Alliance’s definition of antisemitism, so the Islamophobia hunters should keep looking for one of their own.

But there is a phrase in the IHRA’s guidance I find a little uncomfortable. It says: “Criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

What does that mean exactly? How is ‘similar’ to be judged? Western criticism of Putin’s Russia is likely to be more vitriolic than of Macron’s France or Meloni’s Italy. So where is the line which must not be crossed?

Clearly accusing Israel of behaving like Nazi Germany would be antisemitic. But are the frequent charges of genocide in Gaza similarly so?

Whether the slogan “From the River to the Sea, Palestine will be Free” is antisemitic depends on who is saying it, who is hearing it and where it is said.

It would be intimidating chanted outside a synagogue or Jewish school, but not necessarily so down Whitehall.

A Jew might hear it as a call for the destruction of Israel. So might a Hamas terrorist. Palestinian politicians I have spoken to on visits to the West Bank say it is no more than a plea for an independent state by the River Jordan and in Gaza on the Mediterranean. With Israel down the middle where it is now.

Which is why free speech is such a minefield and Starmer is going to have to tread carefully as he tiptoes through it.

Not something ancient Romans bothered their heads about. Any transphobes around while Elagabulus was toying with his gender identity stayed tight lipped.

Because the alternative was ending up in the mouth of a lion.