Absurdity is being piled on absurdity. One week, the police celebrate the successful prosecution of a priest for saying that homosexual activity is a disorder. Literally the following week, they prosecute the satirists of a pastor who called gay sex an abomination.

Meanwhile, the home affairs minister overreaches by calling the pastor an extremist, perilously making him sound like a danger to society when he’s only a nuisance. And the government rushes with an amendment to the law, ostensibly to protect artists, when what’s needed is that the police know the present law and stand firm by it.

All we’re missing is a flamboyant, publicity-seeking lawyer to appear in court, in parte civile, on behalf of all honest, hard-working, upright anuses, indignant at the bum rap of being compared to Gordon John Manché, and demanding, as we say, a fair hearing.

So here, in the hope that we can put this theatre of the absurd behind us, is a homely catechism about the right to free speech and its limits.

Why is the right to free speech fundamental?

To suppress free expression is to suppress an essential part of our humanity. In a democracy, the right to free expression is as fundamental as the right to life and to property.

In several European languages, the word ‘vote’ is derived from ‘voice’ or ‘expression of a wish’. For our democratic choices and participation to be meaningful, there needs to be a free exchange of ideas and experiences, so that our wishes can be clarified and our views are informed.

It follows that, if we should risk error, we should err on the side of liberty. To err on the side of caution, as the Malta police are doing, is to behave as though fundamental rights can be trimmed at will. It’s to treat human rights with authoritarian disdain.

The role of the police is not to patrol what we say but to defend our right to say it. They are there to enable free speech and act against those who would restrict it.

Are there limits to free speech?

Yes, but they are broad. The case law from Strasbourg, the UK and the US shows that deplorable, insulting, offensive and hurtful speech is permitted; so is what reasonable people would consider outrageous.

If Maltese law forbids insult, it falls foul of our own constitution, which recognises the supremacy of the European Convention of Human Rights.

There’s no point in having a right to free speech if there’s no right to offend. Otherwise, atheists, theists and agnostics, for example, could shut each other down for hurtfully challenging the others’ cherished views. As Lord Sumption, formerly of the UK Supreme Court, has stated, no one has the right to intellectual safety.

The police are disconnected from the law, not just reality- Ranier Fsadni

The limit is reached when outrageousness breaches the peace and places a person or group of people in danger. It is not hate in itself that the law forbids; it’s inciting others in a way that endangers someone’s fundamental rights. There, the police must intervene to protect the peace.

How is danger estimated?

The US draws the broadest line: the threat must be a clear and present danger. The possibility of violence in the short-term (but not immediate) future does not qualify, since other remedies exist to ward off danger.

Strasbourg has been less radical. It gives states a ‘margin of appreciation’ for cultural context that could make some speech more dangerous in places than it would be elsewhere. Still, only dangerous speech may be curtailed.

The international guidance (from case law, the UN and free speech NGOs) is clear. The assessment of danger needs to be case by case, paying attention to particulars.

Judges are not druids. They are unqualified to attempt divination. They are there to apply the law and pay attention to evidence, the same way they assess damages in libel suits.

Do particular groups have the right not to be insulted?

No individual or group has the right not to be insulted or not to have their most cherished beliefs challenged.

The law does not recognise special privileges; but it does recognise special vulnerability. Some groups (like religious minorities, LGBTQ, etc.) are deemed to be more easily endangered in their enjoyment of their rights. It is for a special alertness to danger that the law provides, not for privilege.

Should artists be judged by a more lenient standard?

That’s a recipe for infantilising art. In a society that takes art seriously, the artist, flutist and visionary are judged by the same standard as the fartiste, flatulist and pétomane.

We should protect artistic expression not because it is detached from ordinary speech but because it’s the model of all human expression at its best: creative, focused, skilled, engaged with the past and saying something new.

We need no special criteria by which to judge satire (or art more broadly). In prosecuting Matt Bonanno, the police failed to apply the standard criterion of reasonable inference: they took literally what no reasonable person would.

The police are disconnected from the law, not just reality. In prosecuting Daniel Xuereb and Sean Buhagiar, the police are wrongly asserting that people like Manché have a right not to be insulted.

We need no special laws protecting artists. What we need is a police force that understands our constitution and sticks up for it.

We also need the media, as champions of free speech, to be consistent. They’re right to stick up for Bonanno, Xuereb and Buhagiar. But they were wrong not to stick up for Fr David Muscat, when there was no concrete evidence that what he said, about homosexual behaviour, was dangerous.

Had everyone been principled then, we might have dissuaded the police from chipping away at the free speech rights of three people now.