Criminal Speech

Zach Denver

Conservatives are up in arms over the Obama Administration’s handling of the Benghazi attack back in October.[1].  But even though its handling of the incident, which now stretches into the Petraeus scandal, has been troubling for advocates of transparency, many conservatives miss the most troubling aspect of the events.  It is not such a surprise that a politician running for reelection would lie to his constituents to gain an advantage, but it is a surprise that the scapegoat would be free-speech.  The administration’s reactionary sacrifice of the First Amendment to keep its domestic critics at bay was bad enough; even worse was when some of  the president’s supporters in the media started agreeing, in essence, that the First Amendment protection for speech is less important than protecting certain people’s feelings.[2]  Laws like that have precedent in European hate speech legislation, like the one that led to the trial of a national political party leader for criminally insulting religious and ethnic groups and inciting hatred and discrimination.[3] 

Progressives have long advocated hate speech legislation, but a more recent trend in speech regulation is criminalizing speech that, while in bad taste, has nothing to do with inciting violence or discriminating against a disadvantaged group.  This dangerous new tactic has come up recently in a group of prominent cases in the United Kingdom, and this deserves our attention.  If our politicians and media continue to claim that the speech of some is a proximate cause of others’ violent acts, our right to free speech will be significantly curtailed.

In September, a 39 year-old man who wore a T-Shirt celebrating the murders of two police officers was sentenced to eight months in jail for the act.[4]  This is the most stringent sentence in a string of arrests of British citizens for saying things people don’t like to hear.  A string of silly police interventions in the past six years include a student who was arrested in 2006 for calling a police officer’s horse “gay,” a 19 year-old arrested in 2007 for barking at a Labrador, and a 15 year-old facing prosecution for calling Scientology a cult outside the church’s London headquarters.[5]   These innocent speakers were arrested under Section 5 of the 1986 Public Order Act which says that a person:

Is guilty of an offence if he (a) uses threatening, abusive or insulting words or behaviors, or disorderly behavior, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment alarm or distress thereby[6]

Notice that there is no intent requirement to be guilty of Section 5; a violation hinges solely on whether or not someone somewhere feels insulted. This is broad authority for one group of people to use the power of the state to regulate speech, intimidate opponents and silence dissent.

Even worse is Britain’s Communications Act of 2003, under which one can be criminally guilty of sending “a message or other matter that was grossly offensive.”[7] Last September, a member of the British National Party was sentenced to community service for using the word “darkie” on his blog; in March a 21 year-old was sentenced to 56 days in jail for making crude jokes about a soccer player on Twitter; in July a 17 year-old was arrested for sending insulting tweets to a British Olympian.  These communications were not threatening, just mean. But saying something mean is now apparently enough to be a criminal offense that can cause you jail time in Britain.

The worst of the worst though, for my money, is the story of Matthew Woods, the British 19 year-old who in October posted a tasteless joke about a missing girl on his personal Facebook page.  For that he was sentenced to 12 weeks in jail.  After his posts made the rounds online, a few dozen protestors descended on his house and he was arrested soon after.  The reason for such a harsh sentence was the seriousness of the offence, and the public outrage.[8]  Other people’s responses to his Facebook status update will almost certainly ruin this kid’s life.

Most of what is being said by those in the cases mentioned above is admittedly tasteless, rude, unnecessary, irreverent, mean, and totally inappropriate; but criminalizing their attempts to express themselves does serious harm.  Putting aside Justice Holmes’ marketplace of ideas  (because no one is going to win an argument by calling someone a darkie), this type of speech is essential because it gives individuals a chance to practice their public personas.  When Britain criminalizes bad taste it hurts the young men and women who are trying for the first time to express their ideas.  Those individuals won’t magically become more tolerant, or less offensive; they just won’t evolve.  On a personal note, I am honestly very glad that Twitter did not exist when I was a teen because it would have been littered with inappropriate statements.  Even without repressive speech codes or criminalized communication, developing the right online demeanor is hard, and you can often step over the line accidentally.  As someone with conservative leanings at a Massachusetts college, I agitated people daily, but they weren’t able to use an authority figure to punish me.  I regret a lot of the more crass things I said out of ignorance or anger but I was able to practice speaking, and grew as a person because of it.  Now when people feel insulted by what I say at least I’m reasonable, cool, collected and appropriate.[9]  Criminalizing uncouth speech will stunt intellectual development because individuals can’t practice the difficult craft of a public persona without fear of exaggerated consequences.  Having the state dictate acceptable language, even if you think their dictates are right, does not change peoples’ minds. It just stunts their abilities to grow as thoughtful individuals.