by Chauncey Tinker – 20 Mar 2019
There are increasing numbers of attempts being made by governments to limit what we are allowed to say. In order to defend the freedom of speech from further encroachments it is essential that we must first decide exactly what we mean by freedom of speech.
Even the First Amendment of the US Constitution does not protect ABSOLUTE freedom of speech, there are exceptions the most important of which is immediate incitement to violence. I would not describe myself as a free speech ABSOLUTIST, my own preferred definition approximates to the US legal definition. The lack of a clear definition in our law in the UK is a huge problem, we are sliding down a slippery slope of ever greater restrictions on what we are allowed to say.
In this article (the first of a series on the limits of freedom of speech) I look closely at the question of harassment. I look at some examples both at the borderlines (i.e. where it is debatable whether there should be any restriction at all) and also at extreme cases where most people would probably feel that “something must be done”.
The word harassment is not limited to speech, but can include physically threatening behaviour and stalking. A good definition (for those under UK law) can be found at the Citizens Advice website:
Taking action about harassment
According to this advice, harassment begins when you are subjected to at least two incidents from the same person.
In the US, which generally is supposed to have much better protection for freedom of speech, there are nonetheless laws against harassment. From Wikipedia:
Harassment – United States
According to one article cited (from CNET via the web archive), a law was created by George W. Bush in 2006:
Create an e-annoyance, go to jail
Buried deep in the new law is Sec. 113, an innocuously titled bit called “Preventing Cyberstalking.” It rewrites existing telephone harassment law to prohibit anyone from using the Internet “without disclosing his identity and with intent to annoy.”
There are also laws in individual states in the USA apparently:
Harassment Law and Legal Definition
The following is an example of a state law dealing with harassment:
“S 240.25 Harassment in the first degree.
A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.
There is a list of famous cases here at the American Library Association (ALA) website, but they all involve specifically sexual harassment:
Notable First Amendment Court Cases
The internet has thrown up a huge new set of challenges regarding harassment. It is simply a lot easier to harass people online. However internet technology has also found useful solutions in the form of “muting”, “blocking”, and reporting, features. These features do not completely solve the problem by any means, for one thing people can keep creating different accounts and continue the harassment, but they do make it more difficult.
People may also use the anonymity provided by the internet, somebody can be harassing you online and you don’t even know who it is, this is one reason why there have been calls for an end to online anonymity. However online anonymity also has very positive aspects, primarily in giving people an opportunity to speak truth to power and avoid harsh authoritarian censorship from governments. Ending anonymity on the internet would in any case be technically very difficult, and would really require privacy protecting technology to be made illegal, an extremely draconian move. The subject of online anonymity would really merit a debate of its own, but I believe the benefits of online anonymity greatly outweigh the downsides overall.
Many articles appear in the media on the subject of cyberbullying among young people, for example this article from the Telegraph cites a report (by the Journal of Medical Internet Research) on self harm and attempted suicide:
Cyberbullying makes young people twice as likely to self harm or attempt suicide
Statistical reports are not nearly as persuasive as articles on individual cases, which are often accompanied by pictures. A tragic case from the US:
Police accuse two students, age 12, of cyberbullying in suicide
The girl apparently committed suicide by hanging herself.
Another case from Dublin, Ireland, from the Irish Mirror:
Dublin mum whose daughter died by suicide ‘will not stop’ until cyber-bullying laws are changed
Quote from her mother:
“After she died, to my horror I learned it was not an offence to tell someone to self-harm, die, go kill themselves and slit your wrist.
A further list of cases is found at Wikipedia:
List of suicides that have been attributed to bullying
Such cases involving children are at the most difficult end of the spectrum, where it is hard to resist calls for “something to be done”. Should the emphasis be on better education though, and better parenting, rather than the creation of laws that will inevitably have unintended consequences? Can bullying ever be eradicated by legislation in any case, should it rather be the responsibility of teachers and other adults involved with children to be alert to the warning signs of bullying? Since these cases often involve young children not only as the victims but also as the perpetrators, is there really much to be gained through prosecutions in any case?
Many cases involving stalkers who go on to murder their victim are cases where there was some romantic relationship between the perpetrator and victim in the past. From the Sun:
DEADLY DANGER These are the chilling cases where victims were murdered by their stalkers as The Sun backs campaign to change the law
Often in these cases there is some degree of harassment before the murder takes place. It is hard to argue with the suggestion that some legal intervention earlier in the case might have prevented the murder later being committed. There was a campaign to introduce “Stalking Protection Orders” which could be used by the police to intervene at an earlier stage in the case. These orders are now law in the UK:
Stalking protection orders
Right at the other end of the spectrum we have the case of Tim Burton, who sent a short series of 5 mocking emails to the head of the Tell Mama organization (which if you don’t know collects information regarding alleged hate incidents allegedly committed against Muslims in the UK). The emails were sent in response to an advert for a vacancy at the organization. The headline at the Independent was predictable enough:
Right-wing radio host Tim Burton jailed for ‘vile Islamophobic’ trolling of anti-racism campaigner
(I know, Islam is not a race, we have to keep stating the obvious to people). Mr Burton was jailed for 12 weeks for sending 5 emails, none of which threatened Mr. Mughal in any way (the sentence was increased as the “crime” was deemed to be “religiously aggravated harassment”). An article that gives the other side of the story, from the New English Review:
Tim Burton vs. Fiyaz Mughal
When does a peaceful protest cross the line and become harassment? Take the case of James Goddard which I recently wrote about:
James Goddard and the Sneering Elite
James Goddard is at the time of writing facing trial for harassment. From the BBC (scenes in the court room were apparently quite chaotic as described here):
Pro-Brexit activist denies harassing MP Anna Soubry
Even those who disapprove of his activities in this incident outside parliament must surely realize the importance of the right to peacefully protest? Exactly where do you draw the line? We had better not start debating this particular trial in any detail right now as we may fall foul of the sub-judice rule, but it does starkly raise the question: when does a peaceful protest cross the line and become harassment?
The internet has truly blurred the lines between our public and private lives. It has thrown up a lot of challenges and confusion around what should be legal and what should not. I believe it is extremely important that citizens keep a very watchful eye on all government attempts to create new legislation in this area.
I find harassment to be one of the most difficult areas in the freedom of speech debate. I am strongly inclined towards erring on the side of freedom of speech, in fact one of my growing number of mottos is “if in doubt don’t legislate“. On the other hand when a person targets another person persistently without quite crossing the line into what can clearly be described as even threatening behaviour, for example making persistent offensive remarks towards that person in tandem with a campaign of stalking “in the real world”, then I think the case for some sort of legal restriction is overwhelming.
This is an area of the law where I think deciding exactly where the line should be drawn will always be difficult. I think the law should be graded taking into account a number of factors such as the frequency of contact, the vulnerability of the victim, whether threats of violence were made, and so on. I certainly think the bar should be set much higher than the last 2 above cases would indicate is the law currently, so that peaceful protest is not endangered, and so that mere attempts to draw a person into debate don’t also fall foul of the law. I also think that we should be very wary of prosecuting harassment that merely takes place online, and perhaps such cases should only even be considered in cases where there has been contact “in the real world” as well, or clear threats of violence are made.
ET TU JACOB?
Jacob Rees-Mogg is part of a group of MPs trying to bring legislation that will shut down online forums (citing rising Islamophobia and Tommy Robinson support), little realising the gigantic irony that they exist in the biggest echo chamber of the lot – parliament. The proposal came as a reaction to claims of harassment of MPs both online and off.
Norman Lamb MP:
Social media has connected us all but it has to be controlled, says MP
What do you think? Please leave a comment below.