Alex Massie: When freedom of speech is a sick joke

The people of South Africa have been celebrating the life of Nelson Mandela. Picture: Getty
The people of South Africa have been celebrating the life of Nelson Mandela. Picture: Getty
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A heavy-handed response to failed attempts at online ‘humour’ reveals an aspect of Scotland that demeans us 
all, writes Alex Massie

On 28 January 1986, the space shuttle Challenger broke apart and exploded just 73 seconds after lift-off. The catastrophe plunged Nasa into the greatest crisis in its history and for three years the space shuttle programme was suspended. But, at a rough estimate, it took less than three hours for wags and cynics to suggest that Nasa stood for “Need Another Seven Astronauts”.

It wasn’t a very funny joke. It was undoubtedly in poor taste, perhaps even deplorable. Nevertheless it was a joke many of us will remember making and, in more instances than it may be comfortable to recall, laughing at. 1986, of course, was another time. The internet was not yet publicly available (Tim Berners-Lee did not create the world wide web until 1990) and the concept of “social media” had not been thought of, still less popularised.

Which is perhaps just as well since had the Challenger disaster happened in the age of Facebook and Twitter heaven knows how many people would have found themselves investigated by the state’s agents for the supposed crime of making jokes other people might, often quite reasonably, find offensive.

In Staffordshire this week a shop keeper named Neil Philips was arrested and detained by the police for eight hours after a busy-body clipe complained about messages Mr Philips had posted on Facebook two months ago. Among the heinous items reported to the police, a status update complaining “My PC takes so long to shut down I’ve decided to call it Nelson Mandela”.

On this occasion the prosecuting authorities agreed and Mr Philips will not face charges. Nevertheless his experience is another data point endorsing the proposition that free speech is no longer guaranteed in this country. Sure, you may be permitted to say what you think on social media, but if what you say offends you should be prepared to be investigated by the state.

Closer to home, the Lord Advocate has instructed procurators fiscal to “take a hard line” against “hate crimes” perpetrated in response to the Clutha tragedy in Glasgow. According to Frank Mulholland “a robust prosecution policy towards such offences” is “important” in “recognition of the fact that people died and the impact such crimes will have on their families and friends”.

A 16-year-old boy was arrested last week for posting allegedly sectarian and racist comments on Twitter and at least two other people are being investigated for publishing allegedly hateful messages on Facebook. It seems likely that these incidents do indeed involve the publication and distribution of loathsome opinions of a kind that would reasonably shock ordinary, decent people.

But what of it? Upon what reasonable grounds can revealing that you are a disgusting and small-minded twerp be considered a criminal offence? It is true that the Communications Act (2003) and, in Scotland, the reprehensible Offensive Behaviour at Football and Threatening Communications Act (2012) allow the authorities ample room to prosecute citizens for publishing or otherwise communicating opinions that most people might consider highly objectionable. But it is also true that each of those bills authorise curtailing of speech in ways liberals – if any remain – should find grotesque.

We may, most of us, agree that incitements to violence should be a criminal offence. There is, however, a gaping distance between provoking criminal behaviour and simply expressing vile opinions that, be they ever so loathsome, inspire no threat to public safety.

This includes statements that might reasonably be considered racist or sectarian in nature. The aftermath of a horrific incident like the Clutha helicopter crash might seem an indelicate moment at which to insist upon this fact but it is, in fact, the most important time at which to insist upon this.

The Lord Advocate appears to be arguing, however, that the particular horror of the Clutha tragedy and the deep impression it made on the country as a whole demands a more “robust” response. It is bad enough that so many people are prepared to cause offence in ordinary circumstances but even more reprehensible – and thus a matter for prosecutorial attention – in this instance. These comments are hurtful and so these “criminals” must expect to be confronted by the full force of the law. Which, in these cases, means as many as five years in prison.

If this is the “new” Scotland you can keep it. I preferred to live in a country in which racist or sectarian statements were met with eye-rolling or rebuttal rather than by criminal proceedings. We might wish that fewer citizens were racists or bigots; we should also wish to live in a land in which expressing “hurtful” or “offensive” opinions that, again, constitute no threat to public safety, are not punishable by law.

There is no right “not to be offended” and the reason to insist there is no such right is what you may find offensive does not offend me and vice versa. This is not to suggest, as some people aver, that the internet must exist beyond the rule of law. The laws of defamation and contempt of court correctly apply online as well offline. Making a bad joke or displaying distasteful opinions, however, is a different matter. It is beyond depressing that so few of our politicians appear to appreciate this.

A different Scotland that took a “robust” approach to defending free speech, however offensive, would be a better Scotland than a country which, increasingly, seeks to police and criminalise mere opinions. Alas, that better Scotland seems a more distant place than ever.