Double Aspect

There has been a great deal of controversy in recent months over the state of the freedom of expression in the UK. Much of it has involved claims blown out of all proportion, or issues over which reasonable minds can disagree presented as slam-dunk evidence of the UK descending into tyranny, but there have been serious and disturbing claims as well. A recent episode belongs to the latter category. More than that, it usefully illustrates the point that even when a restriction on free expression might be reasonable in the abstract, its implementation and enforcement are unlikely to be, so that it is wiser to refrain from giving it the force of law.

The incident in question is the arrest of Graham Linehan — by five armed officers, no less — for allegedly inciting violence in a number of tweets. The BBC report describes them as follows:

The first post … said: “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and if all else fails, punch him in the balls.”

…

His second post … appeared to be an aerial shot of a group of protesters in a town centre, and he called it “a photo you can smell”.

The third expressed his views, in which he said “I hate them”, referring to “misogynists and homophobes”, adding an expletive.

So described, I fail to see how the second and third tweets can be characterized as inciting violence on any reasonable understanding. I should immediately make clear that I know next to nothing about UK criminal law generally and nothing at all about the law of incitement in particular, and this post is about first principles and some general points about how legal rules translate into real life. But I would like to think that words still mean things, and expressing contempt or distaste for people just is categorically different from inciting violence against them.

The first tweet is a different matter. It does, at least, suggest the undertaking of physically violent action. Mr. Linehan apparently does not agree: he says it was a joke about “the height difference between men and women… and certainly not a call to violence”. This strikes me as somewhere between too cute and self-serving rubbish. And — again, going on first principles — I would think that the law of incitement should be concerned with the objective meaning of allegedly inciting words, i.e. their meaning to a reasonable person, perhaps even a reasaonable person in the circumstances of their target. The author’s post hoc explanation of his or her intent might be relevant (though I’m not even sure about that), but it’s not very strong evidence, to put it mildly.

But that’s not the end of the matter either. Even if the literal meaning of an utterance is, objectively, a call for violence, whether it should trigger criminal liability should probably depend on some contextual factors as well. A comparison with American law is instructive. Eugene Volokh analyzes Mr. Linehan’s tweet from an American perspective in a helpful post at the Volokh Conspiracy. As he explains, quoting Hess v Indiana, 414 US 105 (1973), “[t]he Tweet … appears to be ‘at worst, … nothing more than advocacy of illegal action at some indefinite future time,’ and it wasn’t ‘intended to produce, and likely to produce imminent disorder’.” The requirement that incitement aim at “imminent disorder” is a key feature of American incitement law, as constrained by the First Amendment to the US Constittuion.

Now, I think that up to a point this is a matter over which reasonable people and reasonable political communities might differ. Think of it as a series of concentric circles: at the centre, there is the American approach requiring intent and likelihood of imminent disorder. A somewhat wider circle of criminal liability would encompass statements that can be reasonably expected to produce violence, not just then and there but in some kind of near term. Many cases of people punished over social media posts during the anti-immigrant riots last year fell in that category, and I, for one, find it difficult to have a great deal of sympathy for them. And you can imagine expanding the circle further still, though I am struggling to come up with a sensible definition that I would still view as within the realm of reasonable disagreement.

To capture Mr. Linehan’s tweet, you need to expand the circle very wide indeed. He was not addressing a specific on-the-ground situation like the jackasses who tweeted the addresses of refugee hostels even as crowds were assembling with, seemingly, the intention to set them on fire. He was, on any fair reading of his tweet, posing an abstract hypothetical. It may have been in bad taste, and frankly his explanation of it does not endear him to me, but he was not calling for violence to be committed against any real or identifiable person, in any real or reasonably-expected-to-happen situation. To my mind, it is not reasonable to characterize that as incitement, and if UK law does — keep in mind that Mr. Linehan hasn’t been charged, let alone found guilty — then it needs changing.

But perhaps it needs changing even if it doesn’t. Both a cabinet minister and the Metropolitan Police Commissioner have suggested as much. I don’t have a whole lot of sympathy for the latter, admittedly. He insists that the police actions are “within existing legislation — which dictates that a threat to punch someone from a protected group could be an offence”. I don’t think Mr. Linehan’s tweet was reasonably read as a “threat to punch someone”. Again, it was an abstract hypothetical. So I’m not convinced that it is the case that “officers are currently in an impossible position”, as their boss claims. But he is right that they “should [not] be policing toxic culture wars debates”. And, for his part, the minister is right that “if over the years, with good intentions, Parliament has layered more and more expectation on police, and diluted the focus and priorities of the public, that’s obviously something [thgovernment] need to look at.” He is also right that “[w]hen it comes to speech, context is king”, and that police “have to apply the law as written, not the law as it was intended”. (Say what you will about the present UK government, at least they’re textualists, right?)

The question, then, is how to make sure that the law on incitement can account for context and, at the same time, be applied as written and not on the basis of unstated assumptions about the sort of people it should be applied to, and in a way that keeps the police out of the culture war. And this is where I am tempted to suggest — tentatively — that something like the American approach might be best. In principle, drawing the circle of liability a bit wider than it allows is not unreasonable. Maybe — I’m agnostic on this — it is even preferable, in the abstract. But in the real world, where police officers are human and sometimes trigger-happy — if not in a literal sense, then in the sense of letting their suspicions run a bit wild — or vulnerable to pressure from activists, or indeed tempted to go after people who seem like bad sorts, which Mr. Linehan rather does, the abstract idea of what the law of incitement ought to look like should probably give way to something less amenable to distortion and abuse. By drawing a tighter circle of liability with, accordingly, a shorter circumference, as the American approach does, we also limit the number of eventual arrests and charges in cases that fall just outside its boundary.

Granted, we also let people get away with saying things they perhaps shouldn’t say. But not every moral wrong needs to be a criminal wrong, and this is especially the case when the wrong in question consists of pure speech, and more than that, speech that isn’t harmful in itself, as a defamatory statement might be, or as hate speech is in the view of those who think it should be criminalized. (I do not.) The harm, ultimately, comes from the actions that are incited, not the incitement itself. That’s not to say incitement should never be criminalized, but it is something that ought to weigh in the balance of whether to criminalize the more marginal cases.

I do not think the UK has reached anything like “totalitarianism”, and statements to the contrary by people who ought to know better are not helping. Totalitarianism is not a remotely plausible description for a situation where a person suspected of wrongspeak — however stupidly or unjustly — is let out on bail and is able to benefit from a vigorous campaign to shift public opinion in his favour. But then, “this is not totalitarianism” isn’t the measure of things being right either. “Trump isn’t literally Hitler” isn’t a defence of the US President. “The UK isn’t actually totalitarian” doesn’t mean its law, and its law enforcement, are fine. We would benefit from a rational discussion of what it is wrong, including what is wrong despite being well-intentioned and even not unreasonable. And then, discussion isn’t enough. A government needs to translate its understanding of social and legal problems into legislation that addresses them.