The Right to Free Tweets

The right to free speech, unencumbered by censorship or threat of judicial action, is widely considered to be a fundamental tenet of liberal democratic society.  For liberals such as J. S. Mill, such freedom must necessarily accommodate all ideas being discussed to the point of logical denouement, unconstrained by parameters of social sensitivity (barring caveats concerning causing tangible harm to others).  This claim to freedom of speech is recognised as a human right under Article 19 of the Universal Declaration of Human Rights, which affords free expression to all equally.  

While the ideal of unlimited free speech does not, in reality, exist anywhere in the world – “hate crimes”, for example, are rightly condemned – the extent to which speech is suppressed is a useful tool in demarcating and identifying political arrangements.  For instance, communist states such as China and North Korea, as well as many authoritarian dictatorships across the Middle East and North Africa, implement such stringent controls as the so-called Great Firewall of China.  Liberal democracies such as the US and Britain, on the other hand, tend to implement far fewer restrictions.  However, recent developments suggest that the principle of free speech is being gradually eroded in Britain.

The instance of Paul Chambers is a case in point.  Due to depart for Northern Ireland from Robin Hood Airport in South Yorkshire, Chambers tweeted a message in the early hours of 6 January 2010 having heard reports of a snow-induced closure.  The result was that a cluster of officers from South Yorkshire Police, including plain-clothes detectives and anti-terrorist agents, arrived at Chambers’ place of work.  Rather than extolling the virtues of refraining from humour concerning the destruction of airports and delivering a slap on the wrist, Chambers was arrested under anti-terrorist legislation, facing the threat of prosecution under provisions aimed at bomb hoaxers.  Passing her judgement, Judge Jacqueline Davies proclaimed: ‘Anyone in this country in the present climate of terrorist threats, especially at airports, could not be unaware of the possible consequences’.  She also insisted that the message was ‘menacing in its content and obviously so’.  This incident calls into question the extent to which freedom of speech continues to exist in Britain, testing the boundaries within which one may legitimately exercise free expression.

The Chambers case is noteworthy for several reasons, not least for the clear lack of common sense on display and the disproportionately heavy penalty handed down.  It is important to recognise that the tweet sent by Chambers, while aired via Twitter’s public network, was directed at a specified individual.  Equally, at the time, Chambers had in the region of 690 followers.  Thus, only a limited number of people would have had access to the message, arguably placing the communication in the private, rather than the public, sphere.  Davies’ assertion in passing judgement that an ‘ordinary person’ reading the tweet would see genuine menace ‘and be alarmed’ is therefore something of a moot point; not only would such an ordinary person have to make a concerted effort to uncover the message, the spirit of the message is clearly not that of an enraged terrorist.  Indeed, similar antics are commonplace, but joking that ‘I’ll strangle my boss if I have to work late’ does not often result in deployment of homicide officers.  While the topic of the tweet in question was undoubtedly risque (Al Murray, while supporting Chambers’ right to free speech, labelled a recent benefit gig the “Save Paul Chambers from his own stupid destiny event”), this is not to say that the issue should be censored.  After all, the liberty of others was not infringed.

Chambers’ conviction under Section 127 of the Communications Act 2003, and the failure of the subsequent appeal, was a second cause of dissension, both on the microblogging site itself and among civil liberties lawyers, because of the inherent implications for the online community. The CPS’s invoking of Section 127 caused controversy; Chambers’ barrister, Stephen Ferguson, highlighted that the legislation was aimed at the prevention of nuisance calls – originally intended to protect female telephonists at the General Post Office in the 1930s – rather than being specific  anti-terrorist legislation, which would require strong evidence of intent.  Indeed, the CPS interpret violations of Section 127 as being strict liability offences.  That is to say, the guilty mindset (i.e. mens rea) is not required to be proven in order to bring a prosecution.  This is particularly convenient, as proving any harmful intention to send a menacing communication beyond any reasonable doubt would be hugely troublesome in this instance.  However, that the CPS regards Chambers’ tweet as intentionally menacing could have severe repercussions for anyone partaking in similar activities, be it tweeting, emailing, or blogging: using the CPS’s logic, repeating the original message could be construed as sending a menacing communication.  This is a severe impediment to the right of free speech, conjuring immediate mental comparisons with totalitarian regimes seeking to suppress such liberties.  

Such efforts to erode guarantees of free speech are alarming, and have, rightly, not be endured without protest.  Chambers’ conviction proved to be the catalyst for a pro-rights trend on Twitter.  In an act of defiance aiming not only to highlight the infringement of rights but also to support Chambers in his appeal, the #IAmSpartacus movement was born, inspired by a scene in the 1960s film depicting slaves standing up one by one to claim ‘I am Spartacus’ in order to save their fellow gladiator from detection.  Thousands re-tweeted Chambers’ original message, including Davina McCall, David Mitchell, Marcus Brigstocke and Stephen Fry, with #IAmSpartacus becoming the most popular worldwide subject trending on 12 November 2010.  Indeed, Fry recently vowed that he was ‘prepared to go to prison’ in making a stand for the freedom of speech, arguing that Chambers’ tweet was an example of Britain’s tradition of self-deprecating humour and banter, as well as pledging to pay whatever fines and costs the courts may issue against him so as to enable a further appeal to be made.  The breadth of support Chambers has received is encouraging, demonstrating that the desire for free speech continues unabated; any inconveniences encountered as a result of too much freedom are intrinsically preferable to those associated with having too little.

As an interesting comparison, Sarah Tonner’s piece in The Guardian highlights the example of Kenneth Tong, who utilised Twitter to promote a “health plan” he referred to as ‘managed anorexia’, venerating the achievement of “size zero” and urging the use of self-hate as a stimulus to achieve this result.  Having already achieved fame (of sorts) through appearances in Big Brother, Tong’s capacity for reaching a wide audience is incalculably greater than Chambers’.  By equal measure, given the target audience, there is a substantial potential that such ideas could be taken at face value, causing immeasurable harm (Tong has since insisted that the incident was a hoax).  By comparison, Tong stood to cause much greater damage than Chambers.  Should Tong have also been prosecuted to limit his ability to publicly endorse such concepts?  Ultimately, the answer is no; any rational being can see the idiocy of such ideas.  Preventing their dissemination and discussion, however, would amount to an intrusion on individual liberty.  This in itself would be intolerable.

French Dress Codes: Discrimination Unveiled?

On 11 April, France became the first European state to impose a public dress code that will outlaw the wearing of a form of dress that some Muslims consider to be pious obligation.  This, as noted in a piece published by the AP, will result in an inconsistent social milieu whereby women may bare their breasts in Cannes but not cover their faces on the Champs Elysees.  Once again, questions  concerning individual liberty are being brought to the fore.

To be clear, the ban makes no specific mention of “women”, let alone “Islam” or religion-specific garb.  In this respect, Claude Gueant, France’s Interior Minister, was not wholly inaccurate in his assertion that the legislation protects ‘the principle of equality between man and woman’.  However, Gueant’s claim that the ban similarly entrenches secularism – a cornerstone of French society since the formal separation of church and state in the early-twentieth century – is misleading.  Conventionally conceived, secularism in democratic society connotes freedom from religious impositions and interference of the state; in essence, freedom of religion.  However, actively purging society of religious freedoms (the open wearing of all religious icons and garments has been banned in French schools since 2004) is more akin to laicism, with the state actively seeking to promote a society divorced from religion.  With France’s notorious struggle to integrate Muslim immigrants, coupled with a recent Europe-wide trend amongst political leaders to accuse multiculturalism of being the root cause of social disunity through the creation of parallel communities, an underlying intention of the legislation becomes apparent.  Improving integration requires that common societal values be introduced and adhered to.  By necessity, such values must be free from religious diktat.  Constituting Europe’s largest minority Muslim population, France’s five million Muslims were therefore an easy target.  Thus, while the legislation does not make reference to Islamic veilings, it is clear that Muslim women choosing to cover their faces were the implicit focus of the ban.  Supporters of the embargo point to the ban in educational establishments as evidence that Muslims are not being singled out.  However, this is fallacious: while it is true that the 2004 suspension applied to all equally, the 2011 moratorium will have a disproportionate impact on Muslims.  Moreover, the latest legislation does not stop at the school gates. 

In the opinion of the French government (as well as many elsewhere across Europe where similar bans have been proposed, such as Belgium and the Netherlands), veils which mask a person’s identity are inherently injurious to liberty, eroding the standards required for life in a shared society.   Equally, the government has argued, such attire is incompatible with French notions of equality by virtue of the assumed inferiority such garments portray.  However, to argue in such a manner is erroneous.  Modern conceptions of liberty, as propagated by such thinkers as John Stuart Mill, abide by the simple principle that power may only be ‘rightfully exercised’ over an individual in civilised society, against his will, to ‘prevent harm to others’.  With examples of such clothing being employed to disguise criminal activity being few and far between, the harm that veils may cause to others is bordering nonexistent.  Conversely, with the difficulties associated with proving coercion into veiling, a ban may seem justified to prevent harm to those wearing a covering.  However, David Allen Green points out that banning such items in public could have the adverse effect of stranding women at home, thereby failing to prevent harm in this respect.  For example, Mariam, 32, who wears the niqab by ‘personal choice’ and for ‘religious conviction’, will be forced to publicly expose her face for the first time in five years, declaring: ‘I have decided to obey the law but to leave home as little as possible’.  While it is undoubtedly reprehensible to force a veil upon someone, in an incongruity overlooked by the government, it is equally deplorable to compel an individual to remove a veil.

Interestingly, while being criticised by Muslims abroad as impinging religious freedom, the law has provoked only a limited backlash in France.  Many Muslim leaders have said they support neither the veil nor the ban, opining that interpretations of the Quran necessitating veiling are misguided in the first instance.  It is in this vein that Hassan Chalghoumi, an imam in the suburb of Drancy, northeast of Paris, supports the new law: ‘These women are under the impression that wearing the veil is a religious obligation. … We have an obligation to protect them, to educate them’.  However, once more, in terms of liberty, such coercion is improper; while debate concerning whether the tenets of Islam require veiling perpetuates among scholars and adherents alike, individuals must be free to decide for themselves both how they wish to interpret religious requirements and, accordingly, whether or not to wear a veil.

The punishment for breaking the law is liability to a fine of up to €150 (£133) and a citizenship course (a fine of up to €60,000, as well as two years imprisonment, may be levied for forcing others to wear a veil).  This highlights a fundamental paradox; while the ban allegedly aims to remove suppression and enhance freedom, it will be enforced through curtailing precisely those characteristics, followed by a lesson in state subservience.  While the fine associated with the offence is relatively minor, it bears great symbolic significance.  Thus, Rachid Nekkaz, a French Muslim property dealer, is creating a fund to pay women’s fines, encouraging ‘all free women who so wish to wear the veil in the street and engage in civil disobedience’.  

At least two women were detained on 11 April, though police state that this was a result of joining an unauthorised protest outside Paris’ Notre Dame cathedral rather than for wearing a veil.  ‘Today was not about arresting people because of wearing the veil.  It was for not having respected the requirement to declare a demonstration’ said police spokesman Alexis Marsan.  It was unclear whether charges for wearing veilings would also be brought.  Similarly, in Avignon, Kenza Drider boarded a train wearing a niqab, as she had long declared she would.  The police refrained from challenging her, with Drider insisting that hers was ‘not an act of provocation. … I’m only carrying out my citizens’ rights’.  This lack of protest may be read as indicating overriding support for the ban.  Equally, it may indicate an acceptance of state authority, with those who would logically be most inclined to protest wishing to maintain their religious convictions and remaining indoors.  However the move is interpreted, France has set a dangerous precedent; with some opinion polls suggesting Sarkozy lags behind Marine Le Pen, the ensuing rightward shift could result in further infringements of civil liberties.  As Thomas Jefferson famously proclaimed: ‘A society that will trade a little liberty for a little order will lose both, and deserve neither’.

AV or not AV: Some Myths Debunked

In the past week, campaigning for the 5 May constitutional referendum on changing the parliamentary voting system gained momentum, once again bringing tensions within the governing coalition to the fore.  Amidst fears of apathy and low turnout which would call into question the legitimacy of the ballot – likely the result of conflicting and often misleading messages being peddled by both “Yes” and “No” campaigns – the Electoral Commission weighed in, delivering booklets offering official, neutral advice concerning the technical aspects of the systems in question.  However, several of the finer aspects have been largely overlooked thus far.

A primary contention of the “Yes” campaign has been that candidates will, under the AV system, have to work much harder in attracting support from beyond their core clients to secure a majority of the votes and avoid the anomalous scenario whereby a candidate can win a seat with a minority (217 of the 650 MPs elected in 2010 did not achieve a majority).  As far as representative democracy goes, the returning of majorities is to be applauded.  However, unlike the variant of AV employed in Australia, British voters will retain the option of voting for one candidate only in a practice Vernon Bogdanor refers to as ‘plumping’.  Thus, the potential for seats to be secured with a minority of votes would continue unabashed even if AV is enacted.  By the same token, one must question the accuracy of terming an outcome a “majority” when the result consists of non-first preference ballots.  Campaigners from the “Yes” lobby are making promises beyond that which the system can deliver.   While the Alternative Vote is not as complex as some in the “No” camp would like us to believe, and would not require the use of expensive equipment to tally votes, this is scant consolation.

Indeed, Bogdanor notes that in Queensland and New South Wales, where plumping is permitted in elections to state legislatures, the practice is rather common – some 63% of voters in Queensland plumped in 2009 after a Labour Party campaign to “Just Vote 1”, while the Green Party similarly advised that second preferences be given to Labour.  This raises another issue concerning AV: tactical voting.  Given the opportunity to rank candidates, it is likely that many will vote with their heart for the first preference and their head for any secondary allocations, thereby giving rise to greater strategic ballot-casting and opening the door for negative campaigning.  Equally, while the plight of AV to allow every voter a meaningful ballot is admirable, such an outcome is not realistic against a backdrop of competitive multi-party politics; as long as a majoritarian system of vote counting is in operation, some electors will inevitably be disappointed – this is the nature of electoral politics.  In this regard, all that the Alternative Vote succeeds in doing is assigning greater weight to the ballots of those electing for nominees from unpopular parties in the first instance, thereby disregarding Aristotelian notions of democratic equality.  Clearly, this challenges the principle of One Man One Vote, justifying the description of AV as ‘unacceptably unfair’ by the Jenkins Report on voting reform.

Also in the headlines recently, Baroness Warsi claimed that the AV system would benefit extremist organisations, suggesting that its implementation would strengthen parties such as the BNP.  This is very much a falsehood, no doubt an effort to play to popular sentiment and pull voters onside; with only 1.9% of the vote nationally in 2010 on first preferences and with many candidates failing to reclaim their deposits, it is unlikely that many BNP candidates would make it beyond the first series of vote redistributions, let alone surpass the 50% hurdle.  Indeed, given their current standings in the popularity stakes, it is unlikely that AV would much benefit even the LibDems at this moment.  However, the outrage that has been expressed at this misguided possibility reveals a fascinating contradiction: in a referendum that seeks to refine the democratic credentials of parliamentary elections, is there (or, indeed, should there exist) room to object with who can and cannot succeed?