Transitivity
Regarding this case, and a few others like it, where the freedom-of-speech-absolutist view that "nobody should ever be put in jail just for hurting someone's feelings/making a joke, per se", I find myself wanting to make the following argument:
1. If the family of the murdered child concerned ever got hold of the person who wrote those things on the internet, they would be within their (moral) rights to punch him. (Source: general and IMO convincing moral intuition).
2. If someone did punch that person, they should be subject to some legal penalty, probably including a prison term and this would also be morally the right thing to do. (Source: practical intuition against vigilante justice; victims of an offence don't per se have special status).
3. Therefore, given 1 and 2, if we can regard it as a morally correct state of affairs that the perpetrator is subject to a direct physical sanction of the sort that we regard it as correct for the state to punish by a jail term, why shouldn't it be a morally correct (indeed superior, because it preserves the important practical principle in 2 and saves time and trouble) state of affairs for the internet sicko to be directly punished by the state?
Somehow I think this is a bit fast and glib, but I think it has something to it, and most of the libertarian responses seem to me to achieve the superficial consistency that makes them attractive by simply ignoring the strong moral intuition in favour of 1 above.
Edit: I think my intuition here is the one behind the common law offence of "conduct likely to result in a breach of the peace" - that the rest of us just want to go about our business and have a general right to do so without trouble and disorder caused by the rest of youse. So if victims don't have special status, then you're not allowed to go around stirring up hatred against yourself (by acting like a hateful bastard), because public order offences aren't just offences against the specific individuals harmed; they're offences against public order.
Which raises an equally tantalising possibility that I doubt the legislators will take seriously - as more and more of our life moves online, does the concept of the public peace begin to extend there? It's certainly an inconvenience to me when a screaming Twitter pitchfork mob gets up, and the site becomes unusable. Obviously the inconvenience is laughably de minimis compared to anything in which the criminal law might get involved, but this seems to me like a difference of degree rather than kind.
I think it's a badly-written law; it specifically criminalises send[ing] by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, without any reference to how many people see the grossly offensive material (but with an exemption for broadcasting). So you can tell a disgusting story to a crowd of people down the pub without any comeback (except possibly getting barred), but if you mail it to a friend with an equally nasty sense of humour you're breaking the law.
ReplyDeleteI like the 'conduct liable to cause a breach of the peace' idea, particularly as in this case it did - the silly bugger nearly got lynched.
I think the source of my unease is that my proposed rationale as written invites strategic behaviour (IIRC and frankly it's not like me to get something like this wrong, Dan H first made this argument to me in the context of religious incitement laws and the drama Bekhti).
ReplyDeleteThe point being that if it is established that if you sufficently lose your shit and go mad mental crazy, then John Law will come in and do your work for you, then people will tend to lose their shit and go mad mental crazy a lot more.
I didn't find this argument 100% convincing in the context of religious incitement laws, but it's always been nagging away at me and it still is. Is there a possible underlying principle that the law shouldn't be such as to facilitate strategic behaviour? I think there might be a link here to the (largely dreadful) literature on "lawfare".
People getting together to "take the law into their own hands" is a classic red-line issue for the law, only a bit behind organised defiance of the law. The Public Order Act which banned the BUF from wearing uniform was passed in response to Cable Street in 1936 (where the Fascists had massive opposition) not Olympia in 1934 (where they singled out the opposition and beat them up with impunity, and indeed with police witnesses).
ReplyDeleteThe idea of an ethnic minority being particularly volatile or sensitive isn't new either. In 1936 Ramsay Macdonald said that the fash had to be stopped because they were "planning to create disorder under the cloak of freedom of speech ... to insult the Jews and arouse unnatural passions”.
Further to Phil's point, does the fact that Jones posted the comments on Facebook where (whatever his privacy settings - media reports aren't clear on that point) April Jones's family were extremely unlikely to have seen them unless someone else had publicised them mitigate against the moral intuition of point 1? Not sure he should have had a reasonable expectation that the offensive and unfunny Facebook musings of a no-mark would have gone viral.
ReplyDeleteFor first "Jones" read "Woods". Duh.
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ReplyDelete