Today we have the latest of a long line of cases brought under section 127 Communications Act 2003. Bahar Mustafa, a student union diversity officer at Goldsmiths, University of London, has been charged following tweeting the hashtag #killallwhitemen. This follows earlier cases, enlighteningly discussed here, of homophobic tweets about the Olympic diver Tom Daley, ill considered terrorism jokes tweeted from Heathrow, and a facebook page apparently glorifying the death of a policeman. This post is not about any specific case, but about the offence as framed and whether it should exist at all.
Anyone who has spent any time on twitter will have come across appalling misogyny, anti-semitism, and racism. For me, it has been an eye-opening experience as to how many inadequate people there are. In such an atmosphere it is hard to cling to liberal principles, but we must.
If something I say or do offends or upsets you I do not thereby wrong you in a way that merits criminalisation. Your ability to lead your life is not in any way set back. All of us sometimes make other people upset in our daily interactions. The line meriting state sanction is not thereby crossed. That I have made you miserable is not a good enough reason to punish me.
That does not mean that no criminalisation of speech is ever justified. If I threaten to kill you, or say I am going to punch you, if you believe me you suffer a direct and immediate inhibition of your freedom of action. Some conduct may, if taken in isolation, not necessarily have such an impact, but if repeated overtime may do so. Stalking someone, lying in wait for them so that you are there everyday they leave their home so that they feel inhibited from going about their life, is an example, and is now a crime under the Protection from Harassment Act.
In some case, we criminalise words not because of the offence they may thereby cause to the person addressed, but because of the damage to the public good they can cause. The racial hatred offence contained in the Public Order Act is our most important example of this. We can imagine a different society than ours where such an offence would not be necessary.
The offence in the Communications Act 2003 seems to have no such basis in either the wrong to the victim or a fragile public good that requires protection:
(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
If I shout disgusting grossly offensive abuse at you in a crowded meeting, I do not thereby commit any offence. Why should it be any different on twitter or facebook? Why should what applies offline not apply online? Yes, we should ask twitter to remove offensive posts, and block offensive posters. We should not, however, use the state’s power of criminal sanction to punish those who upset us. It does not matter that we know beyond peradventure that their words are as valueless as any possibly could be. Our reluctance to criminalise does not rest upon utilitarian concerns. We should not punish such words even if we thought it would result in a politer and more considerate world. On its own, that is not a strong enough reason to use the state to punish people.
We should not fetishize freedom of speech, as arguably the United States Supreme Court has done. We should also not let our disgust at the offensive things others say online, or anywhere else, to lead us to conclude that that is sufficient justification for state sanction.