British columnist Katie Hopkins sparked outrage last month when in the aftermath of the Manchester terrorist attack she tweeted: “22 dead – number rising. Schofield. Don’t you even dare. Do not be part of the problem. We need a final solution #Machester [sic]“

Hopkins’ use of the words “final solution” – the Nazi term for the Holocaust – was interpreted to mean that she was advocating the killing of Muslims. Complaints were made to the police who are reviewing the matter and, as a result of the public outcry, Hopkins was fired from her job as a presenter at LBC radio, although she remains a columnist for the Daily Mail.

The question on many people’s minds is: has Hopkins committed a crime of incitement to hatred or violence against Muslims? It is tempting to conclude that the answer is a resounding “yes” – after all, what could be worse than composing a tweet invoking a Nazi euphemism for genocide to suggest Muslims should be killed, and, moreover, posting it to her 700,000 followers in the wake of an Islamist terrorist attack when emotions would be running high?

But the matter is, in fact, not straightforward, for in English law there is a high threshold for the criminalisation of speech, and in order for Hopkins to be found guilty of inciting religious hatred, which seems the crime that best fits the facts of the case, various points would need to be proven.

For a start, her words need to be threatening and not merely inflammatory. Although the phrase she used appears to include a call to action that could be interpreted as threatening, the tweet, when read in its entirety, is less obviously a threat.

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Furthermore, Hopkins needs to have intended to stir up hatred towards Muslims, which she denies. In a Fox News interview when asked about the tweet, she claims she did not mean to imply that violence should be perpetrated against Muslims. Moreover, shortly after the tweet attracted a negative reaction, she deleted it and replaced it with one containing the term “true solution”.

Although these actions might simply represent Hopkins’ efforts to limit the damage to her reputation, after the negative reaction to the tweet they nonetheless make it difficult to prove to the criminal standard (‘beyond reasonable doubt’) that she intended to stir up religious hatred or to incite violence.

Cumulative effect of Hopkins’ rhetoric

Islamophobia is so endemic within the British media and society at large that when Hopkins expresses Islamophobic views, they are not recognised for what they are, but, instead, are treated as legitimate, if inflammatory, expressions of political opinion.

But, ultimately, the question of whether there is definitive evidence to suggest Hopkins has committed a crime is not the real issue, for any decision about charging her will come down to prosecutorial judgment and policy. Thus, a prosecutor wanting to signal that Hopkins’ anti-Muslim rhetoric is unacceptable, could probably build a credible hate speech case against her based on a collection of her articles and tweets, rather than on her “final solution” tweet alone.

Indeed, Hopkins’ writings reveal a pattern of abusive and inflammatory language conveying a message of hatred and fear about Muslims, which, it could be argued, amounts cumulatively to a form of religiously aggravated hate speech. For instance, she stokes up fear against Muslims when she describes Muslim demonstrators as “the vanguard of an army that can hide in plain sight amongst us” in one of her articles . At other times she is plainly abusive, such as in a recent tweet where she, in effect, called Muslims “nasty sods”.

Moreover, the headlines to her articles repeatedly paint a picture of a society overrun by migrant Muslim terrorists that is likely to incite hostility towards Muslims. One headline, for instance, directed at Angela Merkel reads: “You can ban the burka, Frau Merkel. But what are you going to do about banning the migrant boats YOU encouraged to come and which are destroying your country?” and another demands: “How many MORE atrocities before our leaders…admit that, thanks to their immigration policies, being mowed down…is simply the new normal?”

In fact, there is precedent for prosecuting anti-Muslim propaganda of a type that is, arguably, not substantively different to Hopkins’ rhetoric, at least in terms of its underlying message: namely, in 2002 a member of the far-right British National Party (BNP) was convicted of a religiously aggravated public order offence for displaying a poster in his window of a photograph of the Twin Towers in flames, and the words “Islam out of Britain – Protect the British People”.

Hopkins’ Mainstream platform

So, will the Crown Prosecution Service (CPS) take a similar approach and charge Hopkins with a hate crime?

The answer is likely to be “no” because the reality is that Hopkins is not like the BNP member that displayed the anti-Islamic poster, or most persons prosecuted for hate speech – an extremist on the margins of society; she is, to the contrary, a mainstream figure employed by a major media organisation. This fact means that any attempt to charge her with a crime will be met with fierce opposition from the media (some of which might be liable for prosecution alongside her) and by protests that her prosecution is in violation of free speech.

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The question we should really be asking is, therefore, not wheth­er Hopkins has committed a hate crime, but why she is able to enjoy a mainstream public platform and a guise of respectability as a political commentator, which allows her to engage in anti-Muslim ranting with impunity.

The answer is that, sadly, Islamophobia is so endemic within the British media and society at large – as has been well documented by organisations such as the independent think tank, the Runnymede Trust, and the Islamic Human Rights Commission – that when Hopkins expresses Islamophobic views, they are not recognised for what they are, but, instead, are treated as legitimate, if inflammatory, expressions of political opinion.

Notwithstanding, it is clear that many members of the public do see Hopkins’ rhetoric for what it is, and believe she went too far with her ‘final solution’ tweet. While it is unlikely the CPS will reflect this sentiment by prosecuting Hopkins for hate speech, in the court of public opinion she is already condemned.

Salma Karmi-Ayyoub is a barrister and legal consultant for the Palestinian human rights organisation Al Haq.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.