A new kind of free speech case: For tweeting a bad-taste joke Paul Chambers lot his job, was arrested and charged with a catch-all offence (Reuters)
In 1998 a science-fiction writer called David Brin tried his hand at science fact. Brin's predictions in The Transparent Society were not accurate in all respects – predictions never are. But he provided a way of thinking about the modern forms of invasion of privacy, which concern Lord Justice Leveson, and the criminalisation of speech, which unfortunately troubles him less.
At the end of the last century Utopian enthusiasts for the internet and all the computerised and miniaturised technologies that accompanied it, thought that scientific progress had allowed them to escape censorship. They foresaw an age of freedom when dictators, judges and secret policemen would no longer be able to contain them.
Techno-enthusiasts brushed aside the possibility that malicious public and private bodies (including malicious newspapers) could exploit computer technologies. Online activists, most notably Phil Zimmermann of Pretty Good Privacy, thought they could secure the emancipatory potential of the web with encryption systems that dark forces could never crack. A dissident in a dictatorship, for example, would use the web to circumvent state controls. But the technology was Janus-faced. Just as it gave him new powers, it gave the authorities new and minatory means to monitor him. Western geeks could solve his problem by giving him codes which ensured that only his intended recipients in the underground could read his emails. Western citizens could use encryption too if they wished. But as voters in democracies they could also demand that governments give them legally enforceable rights to protect their privacy.
Brin's Transparent Society stood out from the mass of now forgotten predictions about the internet because he understood that technology had made old levels of privacy impossible: "The djinn cannot be crammed back into the bottle. No matter how many laws are passed, it will prove quite impossible to legislate away the new tools and techniques." The best encryption systems in the world are of no use if the state or another public, private or criminal organisation can place a miniature camera behind you while you type, or insert a program into your system to monitor your key strokes. Instead of trying to protect the unprotectable, Brin called for political change to match changes in technology. He envisaged possible responses by imagining how two cities might look in 2018.
In his first city, cameras were on every vantage point. Only the authorities could access them. Crime fell, but the city's inhabitants knew that the police could monitor their behaviour and record their arguments against the status quo.
Brin's second city looked much like the first. It, too, had cameras on every vantage point. All citizens could access them via devices on their wristwatches, however. (He could not predict the sophistication of the modern mobile phone.) A woman walking home could check that no one was lurking behind a corner. A man late for a date could check if his girlfriend was still waiting for him. When the police arrest a suspect they do so with meticulous attention to his rights because they know that unknown eyes might be monitoring them.
The conceit of our age is that we live in Brin's information-sharing city – an understandable conceit because in many respects we do. I do not need to go through the thousands of ways in which new contacts and reserves of information have opened up. Given the speed of change, I am not surprised that the utopianism of the 1990s is still with us. The Australian philosopher Peter Singer said recently that the web was allowing a modern version of Jeremy Bentham's Panopticon. Like Bentham, Singer is a utilitarian. He thus saw nothing sinister in Bentham's vision of a prison where a few guards could see all the cells from a watchtower at the centre of a circular jail. Rather, he welcomed the constant monitoring proliferation of cameras, webcams, mobiles and data collection allowed. I am still shocked by the speed with which the British, a people once renowned for their reserve, allowed their country to become home to more CCTV cameras per square mile than anywhere else in the free world.
Singer sees the cameras as grounds for hope. Surveillance may make us more "honest and transparent", as we realise that our lies could be exposed, he said. It could make us more altruistic as the public charity of others shames us into giving. The authorities may act to a higher standard too. They would know that whistle-blowers could give their shady secrets to Wikileaks, hand them to the press or post them online, and adjust their conduct accordingly. Others can find out more about us, but we can find out more about them. That's the deal for the 21st century. Like so many others, Singer would have done better to remember the authoritarian possibilities of the internet and recall that Bentham's first concern was to cut prison governors' staffing costs.
No state has built an authoritarian cyber-city yet, although after the shock of the Arab Spring, Belarus, Iran and China are exploiting the new surveillance powers to the full. In democracies, we are seeing a halfway house between liberty and repression that no one predicted: a hypocritical response to new technology that hammers down on the perpetrators of some crimes while ignoring others. There is no consistency. Whether or not writers are punished depends on levels of official paranoia, of populist anger or of the malice of those around them. Who the authorities punish is almost a matter of chance.
Unintentionally, Lord Justice Leveson is illustrating the double standards that now abound. His inquiry was meant to be into systematic criminality by journalists. New mobile technologies made their crimes possible, and no one believes that the authorities should not prosecute them. There is not a free-speech jurisdiction in the world that allows reporters to hack phones for information. It is the modern equivalent of breaking into a target's home and reading his letters. As I have said in Standpoint before, if journalists had been after stories that were in the public interest, they might still have appealed to juries to acquit. (In a telling commentary on the morals and motives of the tabloids, not one journalist was.) As there are criminal prosecutions pending, I cannot say more about them. Nor for that matter can Leveson. He can investigate the links between politicians and the media, and his inquiry is providing gruesome accounts of the relations between Rupert Murdoch and successive governments. But perhaps for want of anything better to do, he is also playing with capricious ideas.
In a confrontation with Michael Gove, Leveson said that he wanted newspapers rigorously to separate news and comment. It is an admirable sentiment although hard to follow in practice. Gove gave the standard arguments all defenders of free societies make. Discriminating readers can tell the difference between newspapers that try to present facts objectively and those that produce propaganda. In a free society, it was up to them to decide which titles they then read. Lord Leveson was not satisfied, and from his point of view rightly so. Newspapers had agreed to abide by the Press Complaints Commission's voluntary Code of Practice, Article 1 (iii) of which states, "The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact". The code is an excellent guide to ethical journalism. Newspapers agreed to follow it. Yet Gove was saying that newspapers had no ethical duty to stick to the standards they endorsed. "Would you say the same about other industries and professions which are subject to regulation, that their liberty is being eroded by reason of the fact that they have to observe a higher standard?" asked Leveson. With one sentence he revealed how little he understood.
When I started in journalism in the 1980s, my colleagues told me that I was in a trade not a profession. Journalists were just citizens with typewriters, exercising the same freedom to write everyone else possessed. Writing was not and could not be a profession because you could not professionalise every literate citizen. The theory was fine, but the practice was different. Although everyone could be a journalist, in reality the only people who were journalists were the employees of private or state funded companies and corporations in the media industries.
The entry barriers for anyone thinking of producing and distributing a newspaper or running a radio or TV station were too high for those without access to private capital or taxpayers' money to leap. Like the joke about capitalist freedom guaranteeing everyone an equal right to book a room at the Ritz, everyone was free to hire journalists as long as they were private tycoons or state-funded broadcasters. Journalism was an industry. If the Leveson inquiry had examined press regulation 20 years ago, it would have hit a nerve. Now, however, the costs of publishing on the internet are effectively nothing. The space available to write in is effectively limitless and the potential audience is an ever-increasing proportion of the world's population. Anyone can publish on the web. Anyone can shoot a film on their phone or camera and put it online. Freedom of the press, once the professional concern of an elite or a guild, is now everyone's concern.
Lord Justice Leveson was therefore doubly wrong. Journalism was never a profession, and it is not now an industry. Old newspapers are dying not because readers are deserting them – the editors of the Guardian, Mail and Telegraph groups publish to enormous online readerships – but because advertisers have left them. If everyone can be a journalist, every organisation can be an advertising agency. They can promote job vacancies, homes for sale and every other good and service that used to be advertised in the press on Gumtree, property sites or, indeed, in the case of retailers and large employers, their own websites. The hacking scandal appears to be about over-mighty media organisations exploiting new technologies for criminal ends. Yet it comes as new technologies are destroying media finances. Outsiders see the arrogance of power and miss the stench of death — Leveson more than most. In his statements at the inquiry and draft recommendations, he envisages a new standards body with powers to provide "credible remedies" at a low cost to those who feel the press has treated them badly. He wants membership of his new body to be voluntary — state regulation still sounds a touch North Korean. If a newspaper does not volunteer, however, perhaps because it is wary of establishment quangos, it would suffer. If a complainant sued for libel, "exemplary damages" might flow "because the paper could have had this resolved very easily in a different system".
The journalists he imagined having to pay exemplary damages were not the Peeping Toms of the tabloids but the staff of Private Eye. They investigate shady deals in the City, corruption in local government, the misuse of public funds, and the invasions of privacy by the very tabloids Leveson was examining. Rather than sniff celebrities' underwear, they attempt serious, investigative journalism. English lawyers and the wider establishment always say that this is exactly the type of reporting they wish to encourage. And yet, as if some strange magnetic force were pulling them, they penalise the best rather than the worst. Leveson did not pull himself up short, and say that the English law should strive to make the work of Private Eye easier. Instead he mused at length about how, if its editors "created additional cost", by appealing to what is, after all, the law of the land, "they'll have to pay for it". Fifteen years ago, Brin warned that an excessive concern for privacy would lead to a loss of accountability. "Without the accountability that derives from openness — enforceable upon even the mightiest individuals and institutions — freedom must surely die." Leveson shows no understanding of the danger. Indeed, he appears to wish to exacerbate it.
Gove responded, as anyone who understands how technology has changed publishing would have responded. He asked what the judge meant by a newspaper title now that the journalists' guild has gone. Would blogs, Facebook pages and Twitter feeds be titles? All who write on them publish their work. Must they sign up to the judge's new regulatory board or face "exemplary" punishments?
It seemed the killer question to the tidy-minded. But in reality the explosion of the internet allows double-standards to flourish. Instead of a full surveillance state, it is producing asymmetric authoritarianism in democratic countries. Lord Justice Leveson wants different punishments for different publishers. Meanwhile the authorities punish citizens almost at random. That they are behaving hypocritically by focusing on one alleged miscreant while ignoring thousands of others who behave in a similar fashion does not concern them in the least. And as they seize on tiny misdemeanors of their chosen targets, they reveal that the web is making a nonsense of the standard distinction between "public" and the "private".
In the past, many public events were so hard to find they might as well have been private. To understand what I mean, imagine students getting drunk after finishing their exams. Suppose friends take pictures of their debauchery, and they then become so wild the police take them to a magistrate. In the 20th century, there would be records of their drunken disorder. But they would be almost untraceable: photographs lost in someone's attic; criminal records and cuttings from a local newspaper buried in dusty filing cabinets. Now pictures are on Facebook or websites, and any mention of a misdemeanour online is in cyberspace forever — visible and ineradicable.
Before the invention of the internet, the courts convicted a friend of mine, the son of famous parents, for a minor drug offence. Because of his family, the story made the national press. My friend left university and became a freelance journalist. Every time he went into a new Fleet Street office, he would sneak into the library and tear up every cutting that mentioned his conviction. By the time he had finished, it was as if it had never happened. A few years later, the courts convicted another journalist friend for an equally minor drug offence. The most malicious man on the paper was, inevitably, the religious affairs correspondent. After they had both left, he wrote about my friend on a small website. Its obscurity did not matter because he wrote on the web rather than on paper. My friend has an unusual name. She went to work for an international agency. It denied her promotion because every time managers Googled her name, they found the damning blog post.
What applies to minor crimes applies equally to trivial indiscretions. Six years ago, in one of the first cases to reveal the perils of the internet age, Stacy Snyder, a trainee teacher, posted a picture of herself on her MySpace page. She headlined it "drunken pirate", because she was wearing a pirate hat while drinking from a plastic cup. (She did not look remotely drunk, I should add.) Students drinking at a party is hardly a scandal. But the ineradicable evidence was there in front of the college authorities' eyes. They said she was promoting drinking in virtual view of under-age pupils, and denied her a teaching qualification.
And what applies to minor crimes and trivial indiscretions applies to speech. Police officers, employers and all those others who look for offence can find remarks online they would have needed an army of spies to unearth before the invention of the internet. A drunken man makes racist remarks on Twitter about a black footballer. I am not defending racism when I say his were the kind of remarks drunken football fans make all the time. His Twitter followers denounced him. He sobered up, and was mortified by their condemnations. No matter that civil society had proved it had its own sanctions, and could shame and enforce contrition without state interference. No matter that there was no evidence that he had incited racial violence. (If anything, he had incited violence against himself.) The tabloids took up the story, his university expelled him, and the courts jailed him.
Adrian Smith, a Christian manager working for the Trafford Housing Trust, posted a link to an article about gay marriage on his Facebook page. Underneath it he typed the less than incendiary comment, "The Bible is quite specific that marriage is for men and women. If the state wants to offer civil marriages to the same sex then that is up to the state; but the state shouldn't impose its rules on places of faith and conscience." If he had said the same in his church, no one would have been surprised — indeed they would have been surprised if he had said anything else. No one outside the congregation would have known about it. The housing trust decided that because he had written online he had broken the company's code of conduct. All employers can now scan the web and pull the same trick. Because the employee represents them, they can say that an expression of a political or religious opinion is not the right of all citizens of a free society but an attempt to bring the organisation into disrepute. They demoted Smith and cut his salary from £35,000 to £21,000 — a rolling fine of £14,000 a year merely for speaking his mind.
One of the most famous free-speech cases is that of Paul Chambers, a young man who was planning to fly from Robin Hood airport to see his girlfriend in Belfast. He saw on the television news that snow had closed the airport and tweeted: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!" People make bad, bombastic jokes every day. If Chambers had bellowed it to his friends in a pub, everyone would have forgotten his words in an instant. As it was, the police arrested him, his employers fired him and the courts convicted him under a catch-all charge.
Peter Singer may approve of these prosecutions. The guards at the centre of the panopticon have seen inmates behaving badly and held them up as an example to others. But their punishments make my flesh creep.
Chambers's appeal is going to a specially constituted three-judge court led by the Lord Chief Justice at the time we go to press. I am told that the judges wonder if it is a free-speech case at all. I hope they understand that it is, but of a new type. Western democracies are not dictatorships. They do not exercise total control. Instead, we are seeing the development of a partial authoritarianism based on inequalities before the law. Lord Justice Leveson wants "voluntary rules" backed by "exemplary punishments" for some publishers but not others. Students have a drink, but some have their careers ruined because of it, others do not. A Christian states his beliefs. His employers destroy his career, when other employers would have left him alone. The police pick out one bad joke on Twitter from the 400 million tweets published every day and a man loses his job and gains a criminal record.
Knowledge isn't only power, it is also evidence. The web provides vast amounts of evidence for the censorious to seize on. If we are to strengthen liberal rather than authoritarian tendencies in society, we need broader minds and thicker skins. It is hard not to write on freedom of speech without descending into cliché. But the old truths remain the best guides. The answer to bad speech is nearly always better speech, and those who argue otherwise rarely create countries worth living in.
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