Giving free speech a hammering
It’s time to lift the wig on all the libertarian posturing: judge-sanctioned free speech is not free at all.
It’s often said that the UK judiciary is out of touch. But just how out of touch with reality some judges actually are still beggars belief. Take for example Lord Justice Leveson, who responded to criticism from education minister Michael Gove that he was chilling free speech by claiming, ‘I don’t really need any lessons in freedom of speech, Mr Gove, really I don’t’. Leveson then swiftly produced proposals which, if implemented, would do more to restrict the freedom of the press than any legislation has done in a long while.
Yet Leveson’s delusions aren’t a patch on those of Keir Starmer QC, the director of public prosecutions (DPP). Starmer is currently consulting on guidelines for the Crown Prosecution Service (CPS) which will supposedly help it to work out when it is appropriate to prosecute people for tweets, postings on Facebook and messages on other social media sites. Incredibly, despite this current role formulating online speech regulations, Starmer seems to see himself as a defender of free speech. So, reacting to the fact that prosecutions for ‘offences’ on social-media sites have increased by 780 per cent over the past four years, Starmer declared in a Sky News interview: ‘I think that if there are too many investigations and too many cases coming to court, then that can have a chilling effect on free speech.’
Starmer’s comments were largely welcomed on Twitter, with people tweeting that they were ‘helpful’, that Starmer ‘underlines [the] ludicrous use of law’, and that his comments ‘add weight to the free-speech argument’. A legal correspondent for the New Statesman claimed it was ‘a step forward’. ‘Starmer finally gets it?’, tweeted a lecturer in media law from the London School of Economics.
But what does Starmer actually get? From his comments, he claims to understand the spontaneous nature of certain tweets: ‘Stuff does go up on a Friday and Saturday night and comes down the next morning.’ In such instances, when someone has quickly recognised the error of their tweets and deletes them, Starmer believes leniency should be shown, stating that ‘those sort of remarks don’t necessarily need to be prosecuted’. He continues: ‘This is about trying to get the balance right, making sure time and resources are spent on cases that really do need to go to court, and not spent on cases which people might think really would be better dealt with by a swift apology and removal of the offending tweet.’
Throughout the interview, it is evident that Starmer’s main concern is not with preserving free speech, but rather with how to use the threat of prosecution to encourage people to think before they tweet. And, if people are too hot-headed (or drunk) to tweet responsibly, he wants to incentivise rapid retractions and hasty apologies. To be more lenient, Starmer warns, is in no way a ‘get-out-of-jail-free card’.
What kind of person views the freedom to say what’s on your mind without fear of repercussions as a ‘get-out-of-jail-free card’? Such comments put paid to any idea that Starmer is an advocate of free speech. He clearly does not believe people should be able to speak freely. He makes this very clear: Twitter, he says, is not a place where people can ‘go and say what they like’.
Bizarrely, Starmer’s consultation is being viewed in some quarters as a return of ‘common sense’. The acceptance of, and indeed support for, the CPS’s consultation indicates the shift towards accepting that the state has the right to regulate speech and communication. The fact that fewer people may be prosecuted as a result does not mean that something is not fundamentally awry. Why, after all, should judges have any right to determine which tweets or Facebook posts should land us in the slammer? Why should the duration our tweets survive online be any business of the law? That the upshot of the consultation may be a little more freedom to vent drunkenly online should not detract from the fact that it shouldn’t be a judge’s place to grant us such freedom in the first place.
A consultation aiming to clarify the boundaries of what we can safely say should be given no legitimacy. Judge-sanctioned free speech is no free speech at all.
Patrick Hayes is a columnist for spiked.