Free speech gets a judicial boost

Two important cases about freedom of speech have made headlines in England very recently. In both cases, the courts came down firmly in favour of freedom of expression. About time too.

One was the case of Miranda Yardley, whom Essex Police had charged with harassment at the behest of Helen Islan, a volunteer for the trans pressure group, Mermaids.

Yardley has undergone gender reassignment surgery, but argues that a sex-change op. cannot make a man into a woman (or vice versa, presumably). Islan is married and has a daughter (son?) who is transitioning.

Yardley’s case concerned one tweet identifying Islan, who now uses a false identity on Twitter (but previously tweeted under her own name) and her child, which police claimed was “hate crime”. Yardley showed that Islan’s real identity was readily available online, and that she had publicly discussed the fact of her child’s transitioning on social media. Her child’s photograph was also available online.

District Judge Woollard at Basildon Magistrates’ Court threw the case out saying “there is no case and there never was a case”. He commented that harassment entails a course of conduct, and that a single tweet was not evidence of harassment.

The other case concerned a successful appeal to Liverpool Crown Court by Chelsea Russell. Last summer, Russell was convicted of a malicious communications offence, after she quoted a rap lyric by the black US musician Snap Dogg called “I’m Trippin'”, in an Instagram post in memory of a 13 y.o. boy. The boy had been killed in a road accident. On appeal, the court also agreed that there was no case to answer.

In both cases, the police demonstrated a troubling level of groupthink, where the exercise of Article 10 rights to impart information and ideas is concerned.

In Russell’s case, a PC Walker decided that the quote from a well-known black rapper’s lyric was “offensive to her as a black woman and to the general community.”

This is from the lyric:

Off a gram of molly, and my bitch thinks I’m trippin’.

Now I’m clutchin’ on my forty, all I can think about is drillin’.

I hate fuck shit, slap a bitch nigga, kill a snitch nigga, rob a rich nigga.

Russell was convicted under s.127 Communications Act 2003 and sentenced to an eight week community order and curfew, as well as being made to wear an electronic tag.

Section 127(1)(a) CA 2003 prohibits the sending of an electronic message that is either “grossly offensive”, or of an “indecent, obscene or menacing character”.

The prosecution argued that the lyric had an “obvious hate element”. Russell, who is white and has Asperger’s, told the court that “nigga” is commonplace in rap lyrics, and that young people from Merseyside used it as a greeting.

She said that she had not intended to be “horrible”. Her lawyer branded the case “ridiculous”, and said that hip hop music is part of society.

The police disputed her evidence of local usage of the term as a greeting, but the appeal court said that the police could not give expert evidence on this point.

The appeal court noted that the song was widely available online. Although the words quoted were “thoughtless, offensive and unpleasant”, they did not meet the threshold for a s.127(1)(a) offence.

As the famous Twitter joke appeal in Chambers v DPP [2012] showed, freedom of speech gives people the right to publish sentiments that others may find offensive. That freedom includes the right to post: “Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it”. People are free to say what they feel, not what they ought to say.

Both the police and CPS should know better than to pursue cases involving the legitimate exercise of free speech, therefore. The irony of a black WPC claiming that a black musician’s output is illegal is especially acute.

In substance, the Russell case was one of a woman in a position of authority seeking to punish a younger woman, because she disapproved of her taste in music. That is deeply regressive, in my opinion.

As for Helen Islan, it seems that she was really seeking to deny another’s freedom of speech, in order to avoid robust criticism of her own online activity.

It is interesting that in August last year, Islan had threatened Yardley with a civil action for defamation and/ or harassment, via the well-known society solicitors Mishcon De Reya.

This is an increasingly common tactic, I have noticed. Despite the fact that the offence of criminal libel was abolished in 2010, some activists with axes to grind – and, indeed, some obvious cranks – set out to attack social media critics, first by intimating a civil claim that never emerges, and second by running off to the police as an alternative means of censorship.

This is the re-introduction of criminal libel through the back door, in my view.

It is high time that the CPS wised up to this misuse of public resources by aggressive lobbyists who are really trying to intimidate critics, and to silence opposing views. Magistrates’ courts are not a poor man’s Media & Communications List, and should not be a vehicle to shut down uninhibited public debate on matters of general interest, or the robust expression of personal views. If some people don’t like others’ views, then why read them?