Speedy prosecution of Facebook teen means no time for decent defence

I am so angry about this that I don't even know where to start, so I'll just start. I may need to actually restrain myself. *Deep breaths* A case was brought before the Magistrates Court in Bury St. Edmunds, West Suffolk last week concerning a 17 year old boy who posted an update to Facebook that has been viewed as an invitation to start riots. I knew about this case when I saw it written up in the Guardian a few days ago after sentencing. The sentence was a 12 month ban from all social media and some other non-custodial terms. What was not immediately apparent to me when I read that article was that the youth was charged under section 127 of the Communications Act 2003 for sending a menacing message. This is the same charge under which Paul Chambers was convicted and which he is still appealing in what has become known as the Twitter Joke Trial.

The Twitter Joke Trial was a real "red pill" moment for me. The police and prosecution handling of the case was so obviously misguided to me that I couldn't help but speak up. I have been an early campaigner to have the charges dropped and then to have the judgement overturned. I am now a self professed civil libertarian with a particular interest in free speech. It is sometimes difficult to communicate to people the dangers that cases like Paul Chambers' place us all in. Difficult, because people often can't see beyond the facts of the case at hand. I'll delve into the Twitter Joke Trial more in another post. That's not what this one is about.

Here is an article I found today about the Bury St. Edmunds case as it was written up locally after the initial hearing adjourned pre-sentencing. Read it and try not to weep: http://www.eadt.co.uk/news/west_suffolk_facebook_riot_teen_was_idiot_1_991897

From this article I learned that the charge was under the Communications Act 2003, section 127, which deals with the improper use of public electronic communications networks. I don't know why the Serious Crime Act 2007 was not wheeled out like it was in other similar cases after the UK Riots. Perhaps this was felt to be inappropriate when dealing with a minor. Perhaps it was the extenuating circumstances that made this charge seem inappropriate. Here are the circumstances:

On Tuesday morning, the 9th of August, this 17 year old boy posted the following update on Facebook - "I think we should start rioting. It’s about time we stopped the authorities pushing us about and ruining this country. I think it’s about time we stood up for ourselves for once so come on rioters, get some. LOL" Note that the local article omits the "LOL" at the end, which I feel is important. This followed several nights of rioting in London.

At some point in the day, the teen's update was met with comments from "friends", some of whom suggested that the update was foolish and that the author was an "idiot". A brief debate ensued in which the teen mentioned the Duggan shooting in Tottenham and abuses of police power. The result of the discussion was that the teen admitted that his remarks were "stupid" and then deleted his post.

Here's what the prosecutor, Sarah-Jane Atkins, had to say. These are some of the dumbest prosecutorial remarks I've seen, and I intend to show just why. This is from the EADT24 article:

“Within minutes, his friends on Facebook are condemning the words he has posted and telling him in no uncertain terms what a poor opinion they now have of him,” Miss Atkins said.

In response, the boy then posted a second message, saying he didn’t see the point of being pushed around by the police all the time.

The boy then entered into a debate with one friend in particular over the shooting of Mark Duggan in Tottenham on August 4 before admitting his comments had been ‘stupid’.

“We are all thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form,” Miss Atkins told the court.

Lady, are you serious? "Within minutes, his friends... are condemning the words ... and telling him in no uncertain terms what a poor opinion they now have of him." [Translation] Within minutes, his friends are busting his balls for being an "idiot". Anyone who uses Facebook or Twitter regularly knows that this sort of banter happens all the time.

The boy then entered into a debate with one friend in particular in which he expressed some politically charged opinions and then admitted his earlier remarks had been "stupid". In other words, free speech worked exactly the way it's supposed to. Good speech followed some arguably bad speech and then the world was better for it. Although you wouldn't think that's the way it's meant to work if you listened to the idiotic remarks of arsehole prosecutor Atkins:

"We are thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form..."

I have to assume that this was not the end of the sentence. Is she really suggesting that a bad outcome would be the posting of further comments in any shape or form? Is she saying that it's a good job his friends didn't post their own similar Facebook updates? Are we all just a bunch of sheep who can't be trusted to think for ourselves? She seems to miss the central point. His friends did not react badly. They reacted well. The situation managed itself. Nor were his friends likely menaced. Perhaps someone turned him in. I don't know. If that's the case then this is tragic. Anyway, he deleted the post the same day. The post did not have much scope to cause menace, frankly. It went to about 400 people on Facebook, most of whom probably either didn't see it or just thought it was "stupid". Is there any need to punish this kid? He made an arguably stupid remark, possibly in jest, and was talked out of it. To impose criminal liability is tantamount to prosecuting a thought crime. It really is.

Now this is the part that really burns my arse. The defence does a terrible job. Horrific:

In police interview, the boy said he had only made the comments to ‘have a laugh’ and didn’t intend anyone to take the actions he had suggested.

David Stewart, in mitigation, said the boy had since realised he had been ‘inordinately foolish’ and recognised what an idiot he had been.

“His friends have a very poor opinion of him and he has a very poor opinion of himself,” Mr Stewart said.

“A lesson has been learnt.”

It's as if the defence counsel has never heard of the Twitter Joke Trial. That's because he probably hasn't. Early on in that case the South Yorkshire Crown Prosecution Service (CPS) persuaded the defendant and his lawyer that there was no choice but to enter a guilty plea as Paul Chambers did not deny that he'd sent the offending communication. In other words, the CPS were of the opinion that this was a strict liability offence. This was despite case law from the House of Lords that required mens rea (guilty mind, or intent) to be proven. Had Paul been receiving good legal advice from the beginning, he would have entered a not guilty plea and the CPS would likely have dropped the case, because they felt there was insufficient evidence at that time to prove intent.

I wonder whether Mr Stewart believed this to be a strict liability offence and that the only possible plea was guilty. I wonder whether the West Suffolk CPS believed this as well. This case is an utter disgrace. The rush to early "justice" following the UK Riots has prevented this young man from gaining access to a robust defence. Had some lawyers that I am well acquainted with had the time to become aware of this case before it was heard before the Magistrates, they could have offered free advice that I believe would have drastically improved the outcome of this "trial". I can only hope that the facts I've examined here can form the basis of a successful appeal. This truly is Arsehole Justice in its purest form. Let me end on this tragic note from the Guardian coverage:

The boy's mother told the court: "He is normally a good boy but, like all teenagers, he has his stupid moments."

Speaking to magistrates, the boy added: "I meant it as a joke which is why I wrote LOL at the end."

Links - 17th August 2011

Some good articles today (or yesterday, or whatever. Leave me alone):

Liberalism and Riots: Cause and Effect? by Matt Bradley (Arsehole Justice contributor)

Civil disorder and looting hits Britain: We have been here before - Bagehot, The Economist

England riots: will harsher sentences act as a deterrent? - Alan Travis, The Guardian

Another Arsehole Justice: Andrew Gilbart QC, Manchester

http://www.guardian.co.uk/uk/2011/aug/17/facebook-cases-criticism-riot-sentences

Andrew Gilbart QC, made clear why he was disregarding sentencing guidelines when he said "the offences of the night of 9 August … takes them completely outside the usual context of criminality".

"The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation," he said. "For those reasons, I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from."

Regardless of the severity of the offences before the court, this statement is the epitome of arsehole justice. Nothing takes a specific offence out of the usual context of criminality. Proportionality is one of the fundamental principles of British justice. There may be aggravating or mitigating factors to consider, but the sentencing guidelines allow for this. You simply cannot throw out the sentencing guidelines and expect to deliver justice. Also, judge, please be aware that the principal purpose of courts is to protect the innocent not to make examples of people. I'm sure you will be familiar with Blackstone's formulation which tells us that it is better that ten guilty are set free than one innocent suffers. Andrew Gilbart QC, you are quite possibly an arsehole. The jury is still out on that one, but there's no question that this is a clear case of Arsehole Justice.

[NB - Read the rest of that article. David Cameron supports these harsh sentences. Some dude will probably go to prison for stealing an ice cream cone. Arseholes!]

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

From the Guardian: http://www.guardian.co.uk/uk/2011/aug/16/facebook-riot-calls-men-jailed

Judge Elgan Edwards QC has dished out some serious Arsehole Justice against the defendants Perry Sutcliffe-Keenan and Jordan Blackshaw in Chester Crown Court. These two men were charged with inciting unrest under sections 44 and 46 of the Serious Crime Act 2007, which carried a maximum sentence of 10 years in prison. Both men received 4 years in prison for creating Facebook pages that appeared to be organizing riots in their local communities, neither of which resulted in any actual disorder and at least one of which was regarded as a joke by its author.

According to the Guardian article linked to above, Judge Edwards stated in his judgement that Blackshaw had committed an "evil act". He said: "This happened at a time when collective insanity gripped the nation..." [Flay here] Erm, actually I think that's what's happening now. "...You sought to take advantage of crime elsewhere and transpose it to the peaceful streets of Northwich. The idea revolted many right thinking members of society. No one actually turned up due to the prompt and efficient actions of police in using modern policing." [Flay here] Or maybe no one took it seriously except for the police. Hard to say.

About Sutcliffe-Keenan, the judge said he "caused a very real panic" and "put a very considerable strain on police resources in Warrington." [Flay here] I'd like to see the evidence of who was panicking. I wouldn't be surprised if it was only the police. The author of the page went to bed and woke up with a hangover, apologized, took the page down and said it had been a joke (sound familiar?). Neither of the two men caused a riot to take place. Nothing happened. You can credit the police for their swift actions; however, one would have thought that perhaps it would be better to use this information to try to catch potential rioters in the act. At any rate, four years after pleading guilty makes a mockery of justice. People serve less time for manslaughter. These guys wrote some words on a web site that caused nothing to happen except a police investigation. What really bothers me about this is that it is a natural response in human beings who are in denial about terrible things going on around them to make make light of the situation. Some of that may have been what happened here. For that reason and others, this seems like a clear case of Arsehole Justice.

When the government knows better than the copyright owner

It seems the Departments of Justice and Homeland Security under the Obama White House are increasingly viewing themselves as the guardians and protectors of all United States intellectual property. Operation In Our Sites, launched by the Immigration and Customs Enforcement branch of Homeland Security in June 2010 has seen some 90 internet domains seized that were associated with websites believed to be engaged in the illegal distribution of copyrighted materials or sale of counterfeit goods. Earlier this month ICE made the alarming claim that they believe any web domain that sits under the top level domains of .com or .net fall under US jurisdiction because the DNS for those TLDs is routed through Verisign's switches located in Virginia. This was reported in the Guardian newspaper. According to Erik Barnett, the agency's assistant deputy director, this allows the United States to seek extradition of foreign nationals who use .com or .net domains in their law-breaking activities, regardless of the locations of the nationals or the servers and regardless of whether the activities are legal in the local jurisdiction.

This stance became clear as ICE sought from the British government the extradition of a UK national who had created a web site that allowed a user community to post links to video content, some of which had been made available on sites such as Youtube without respecting copyright. In the United Kingdom, Richard O'Dwyer's tvshack.net website (in the aforementioned article) would enjoy the "mere conduit" defence as it was simply a platform that serves a user community who provide the content. It is arguable whether a URL can even be treated as a copyrightable work in any context. A Uniform Resource Locator is nothing more than a signpost to the resource that a web browser is seeking. The content delivered through a URL can change at any time, so it is hard to see how a URL can represent a work any more than a telephone number can represent a person. It seems however that in the United States, this is beyond question.

The very worrying development that I've seen today however, makes this case seem insignificant. Yesterday Aaron Swartz, a fellow at Harvard University's Center for Ethics and an activist for open knowledge, was arrested and charged with offences under the Computer Fraud and Abuse Act. The alleged offences include hacking into JSTOR, a non-profit organization that hosts academic journals, via a computer room at MIT and then downloading millions of research papers onto his laptop computer. JSTOR charges for its content, and research universities typically pay a flat fee for access and then make the digitized journals available for free to faculty, staff and guests for research purposes (as one might reasonably expect). The indictment, which can be read at the bottom of the linked article, charges that Swartz used subterfuge to gain unauthorized access to MIT's computer network and used software tools and trivial measures to automate the downloading of content and to circumvent the weak efforts made by MIT and JSTOR to prevent such mass downloading. Eventually, he was found out and somehow the FBI got involved. It's not clear how the Feds initially were activated, but it is clear that both JSTOR and MIT were eventually satisfied that there was no harm done as Swartz gave assurances that he did not intend to distribute the articles that he downloaded.

One would have thought that the matter might end right there, but one would be wrong. The US Attorney's Office decided to press ahead with a prosecution for felony computer hacking, worth up to 35 years in prison and a $1 million fine. Because the files were accessed from a computer in Massachusetts and the JSTOR servers are located in another state, this rises to federal jurisdiction. Here is what JSTOR have to say on the matter:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

JSTOR, in other words, are not really bothered about this breach and having engaged in civil discourse with Aaron Swartz were prepared to take him at his word that he had no intention of distributing the materials. Why then is the US Attorney's Office so keen to prosecute Swartz for what amounts to little more than the violation of an online service's terms of use? Since when is it a crime, federal or otherwise, to violate a web site's terms and conditions? I would have thought this was clearly a civil matter. More importantly, why is the federal government enforcing a web site's terms and conditions when the company that owns the website is not asserting them? The files that Aaron Swartz downloaded were ones he was free to download as a guest of MIT. He just wasn't supposed to take so many. He may have gained unauthorised access to the MIT computer network, but that would be between himself and the university with no state lines having been crossed.

I find this approach deeply troubling as the US Attorney's Office is sending a clear message that it has a mandate to pursue a prosecution on copyright grounds even against the wishes of the copyright owner. JSTOR act as an agent for the journals who own the copyright of selected works, and so they have a responsibility to ensure that royalties are collected and properly distributed. If JSTOR are willing to take the risk that Mr Swartz will not redistribute the materials he downloaded, they must believe that the risk is insignificant. There is nothing to suggest that any of the journals that figure into this story have sought a remedy for copyright infringement. What we have here is the federal government taking charge of enforcing copyright even when the copyright owners are not bothered about it. That makes no sense. Surely as a copyright owner who licenses content I can decide on a case by case basis whether or not I want to enforce that license. It is not for the federal government to intervene like some sort of guardian angel. This sets a terrible precedent. Whatever next? Will the federal government decide that all content should be governed by commerce whether we like it or not? Will it be un-American of me to give away for free the content that is of my own creation? Sounds silly. I'm not laughing though.

Where should the right to privacy begin and the right to speak freely end?

I'm a strong proponent of freedom of speech. I cannot and have no wish to deny this. The Paul Chambers so-called "Twitter Joke Trial" has shaped my views in this area. I have even at times half seriously referred to myself as a free speech fundamentalist, although in reality I am not. I understand that there are and ought to be limits imposed on what a person can say. These limits depend mainly upon the context of the speech act in question and the rights of other people. I have the right to say something that you find offensive. You do not have the right to be free from offence. You have the right not to be threatened and abused. I do not have the right to direct threatening and abusive language at you. The right to privacy is enshrined in the laws of many countries, including the United States and every member of the European Union. The European Convention on Human Rights, which is implemented in the UK by the Human Rights Act 1998, specifies among other things the rights to free expression and privacy. Naturally these two rights are often in tension. When this happens the judiciary must apply a consistent approach to deciding which of the two should take precedence in any given case. The case of CTB v News Group Newspapers has presented a unique challenge to the judiciary for reasons that I do not wish to explore in great detail; however, I want to talk about this case in particular because I have a view of privacy that seems to differ sharply from the judiciary in this country and in Strasbourg. Quite to my surprise, my view of privacy also seems to differ from some of my friends who otherwise have very similar views to my own where free speech is concerned. Before I go any further, let's look at the text of Article 8 of the ECHR which is implemented in HRA98:

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There are two separate statements here. At this point I need to make clear that there is no public authority attempting to interfere with the privacy rights of CTB. Instead, we have a newspaper group and a private individual who wish to breach the privacy. Because of this, the second statment has no bearing on the case. The first statement says "Everyone has the right to respect for his private and family life, his home and his correspondence." The facts of this case are very roughly as follows: A woman called Imogen Thomas had an alleged affair with a professional football player who is married with children and who wishes not to be named; Imogen Thomas desires to tell the story of her relationship with the football player identified in the court documents as CTB and News Group Newspapers Ltd. wishes to purchase the story for publication in their newspaper, The Sun; The claimant CTB sought and Justice Sir David Eady granted on the 14th of April 2011 a temporary Anonymised Injunction preventing the disclosure of the claimant's identity. In his judgement, Eady cites evidence before him, tending to suggest blackmail, as one of the major reasons for the granting of the injunction. He is quick to point out that the evidence has not been properly tested and that he cannot come to any final conclusion at that stage. (See para 9). The evidence also appears to suggest that Newsgroup were using Imogen Thomas with her consent to set a trap for the claimant in order to obtain additional materials for their story. Because of this, Eady felt it was reasonable that the claimant be excused from serving the respondent Imogen Thomas in advance of the 14 April hearing (see para 12). What this effectively means is that Imogen Thomas was unaware of the action until she was served with the injunction and was not afforded the opportunity to state a case. She was at that point and is still muzzled from revealing the identity of the sports star with whom she had an affair, to any party other than advisors and close friends and family (I am led to believe), who are then also bound.

Case law and what is referred to as "the new methodology" (para 23) requires first that the court decide whether the subject matter of the threatened publication gives rise to a "reasonable expectation of privacy". In this case Eady feels (and is indeed supported by case law) that there is no doubt on that score, as it is concerned with "conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly". Here is where I find myself differing sharply with the judge (and evidently also case law). I do not believe that conduct of a sexual nature is necessarily intimate, nor do I believe that the fact of such a relationship is necessarily entitled to privacy. The salacious details of such a relationship may well be, be not the fact of it. What I see here is that there was a relationship involving two people and one of them wishes to keep it secret while the other wishes to disclose it. I would argue that contrary to intuition, there is a greater expectation of privacy in a relationship that is conducted publicly. That is because in a secret relationship such as this between one married and one unmarried party, the former is at great risk from exposure while the latter is not. It is hard for me to see how such a relationship could foster the necessary levels of trust in order to be regarded as intimate. The view (no matter how sincerely held) on the part of CTB that the fact of his relationship with Imogen Thomas should be accorded protected status should she wish to reveal it does not therefore seem reasonable to me. As such, if it were up to me this application would have fallen at the first hurdle. That she should be even temporarily prevented from disclosing personal details of her own life because of a perceived obligation of confidence that she owes to the claimant strikes me as wrong and also dangerous. It is made worse by the fact that once the information was already leaked to the wider public, the further dissemination of that information was and still is in contempt of court. In my opinion Article 8 should not generally be used to prevent one from revealing information concerning the activities and aspects of one's own life even where it intersects with another. This should be a matter of ethics, not a matter of law. Article 8 should rather be used to prevent and/or remedy unauthorized access to private information about a person, i.e. blatant press intrusion into the private sphere. Examples of this might include a journalist going through someone's rubbish bins, or a newspaper using fraud and deception to obtain information. If the allegations against NGN and Imogen Thomas are true, then this is indeed a very serious breach of privacy and is indeed also attempted blackmail. However, Imogen Thomas was not afforded the opportunity to state a case when the injunction was granted and so the evidence before the judge was one sided. It is therefore in my opinion wrong to gag her. The final paragraph of the judgement is one I find particularly galling:

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, ...

The implication is that since CTB does not wish to be named as having had an extra-marital affair with Ms Thomas, she may never publicise this information, regardless that it happens to be true and a part of her own life. I'm sorry, but no. The information was lawfully obtained as the result of shared experiences and she is an autonomous human being. Because of this I also take issue with paragraph 33:

It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].

The problem with this is that the "tittle-tattle about the activities of footballers' wives and girlfriends" and the "tawdry allegations about an individual's private life" should not be regarded solely as the object of journalism. They are first and foremost the reflections of a party to the "tittle-tattle" who ought to be permitted to speak about them. If a newspaper wished to publish some details that no other party wished to have told, then I can follow that reasoning. The paragraph is referring to the newspaper's freedom of speech as pertaining to the publishing of information it has obtained. It is another matter when applied to Ms Thomas' freedom to recount her life. If there was some way to prevent newspapers from publishing the information while still preserving Ms Thomas' right to communicate it freely, then that would be far preferable. The fact that the information is not in the public interest is to my mind immaterial. It should be Imogen Thomas' right to speak freely as an interested party. It seems to me that Eady's interpretation is that Ms Thomas should not even be permitted to publish a personal blog of her account. Had she done so before the injunction was granted, she would have been in breach of CTB's Article 8 protections. I do not agree.

The issue has been raised a number of times surrounding the right to privacy that the family of CTB deserve. The revelation of the affair could have potentially devastating effects on their private family life, including severe marital distress and teasing and bullying of children in the playground. I appreciate this and it is indeed sad that our attitudes to marriage and sex can cause such harm to others. However, I see this as an indirect consequence of the revelation of the affair, which is after all a consensual relationship between two people who knew the risks should the truth come out. As much as we would like to believe that we can always shield our family from the consequences of our actions, this is simply not practical in real life. A husband, wife, father, mother, son or daughter may be convicted of a crime for which they are incarcerated for a length of time. Certainly this will have serious and profound negative implications for private family life. Likewise will a serious illness. However, it is folly to think that we should fail in our duty to carry out justice or communicate unpleasant news because of the harm it may cause to some. For perfectly innocent reasons, parents may get divorced and the children may suffer as a result. Children may be bullied for all sorts of other reasons that are not within our control. It is unpleasant, but as parents we must try to raise our children to deal with the things in life that are not fair. Kids are tough. Adults are too. With proper support they can get through difficult times with surprising resiliency. The results can even be beneficial ultimately. It is in my opinion a serious over-reach of the judicial system to interfere with speech for the purposes of preventing any harm that speech may indirectly cause to someone else owing to social attitudes. So long as parents are fit to raise their children, it is not for a judge to decide what is best for them.

In conclusion, I think these privacy injunctions are handed out too freely. They have also been shown to be farcically ineffective in the age of social media. There may be some use in certain narrow cases, but I don't think this case calls for one. Certainly the idea that an injunction can prevent blackmail seems ludicrous. Blackmail is about coercion in exchange for keeping quiet. Once the "cat is out of the bag", the blackmail game is up. Why not instead build a case for the charge of blackmail? The threat of an attempted blackmail charge with sufficient evidence to back it up ought to accomplish the same goal. Privacy is important to protect pre-emptively though. You cannot put the genie back in the bottle. So what can we do about it? First of all, I think we should review our interpretation of Article 8 which I feel has been too broad. Second, perhaps instead of a gagging order we should allow relief in the form of a court resolution which states that there has been accepted an objection to the publication of information which is deemed to be private and believed to have been obtained without authorisation. The resolution would make clear that publication of the information covered would incur greatly more severe penalties, both civil and criminal, should it be found at a later date to have been obtained unlawfully. This might give tabloid newspapers and "gold diggers" like Imogen Thomas some pause.

Why is free speech so difficult for some people to comprehend?

I haven't been very good about writing in my blog recently. The urge comes and goes. There's something I wanted to write about last week, but I waited too long and lost the desire. Something I've just seen has brought it back though. What I'd intended to write about this time last week was the attitudes of a couple of US Senators towards free speech. The Senators are Majority Leader Harry Reid (D-Nevada) and Lindsey Graham (R-South Carolina) and the context is the recent burning of a copy of the Quran by Florida pastor Terry Jones (the same one who threatened to burn copies of the Quran last year). The two Senators are upset and rightly so by the rioting in Mazar-I-Sharif, Afghanistan that killed eight United Nations workers. But somehow they overlook the fact that these killings were done by people who share a warped sense of justice, regardless of how or even whether they might have been incited to violence.

On Sunday the 3rd of April, Senator Reid had this to say to Bob Schieffer on CBS's Face the Nation explaining that some members of Congress were considering some kind of action in response to the Quran burning, a political expression protected by the First Amendment: "Ten to 20 people have been killed," adding "We'll take a look at this of course...as to whether we need hearings or not, I don't know." On the same program, Senator Graham said the following (which would be laughably ridiculous if he weren't a law maker):

"I wish we could find a way to hold people accountable. Free speech is a great idea, but we're in a war. During World War II, we had limits on what you could say if it would inspire the enemy. So, burning a Koran is a terrible thing but it doesn't justify killing someone. Burning a Bible would be a terrible thing but it doesn't justify murder. Having said that, anytime we can push back here in America against actions like this that put our troops at risk we should do it, and I look forward to working with Senators Kerry, and Reid, and others to condemn this, condemn violence all over the world based on the name of religion. But General Petreaus understand better than anybody else in America what happens when something like this is done in our country and he was right to condemn it and I think Congress would be right to reinforce what General Petreasus said."

So much to pick apart here. Free speech is not just a great idea. It is the cornerstone of a healthy democracy. It must be protected at all costs, barring certain well established exceptions where actual harm is directly caused. Graham is right that Koran burning is a terrible thing (to some) and that it doesn't justify killing someone. Why not leave it there? That says it all. Pastor Jones is in no way responsible for the killings of innocent people in Afghanistan. You might as well claim that the Martin Scorcese film Taxi Driver is responsible for the attempted assassination of President Ronald Reagan or the rock group AC/DC is responsible for the work of serial killer Richard Ramirez, who claimed to have been influenced by their track Night Prowler. Some have tried to make the latter claim, but thankfully these people have always been a sliver of a minority. It is worrying though that this attitude is becoming acceptable and even mainstream, particularly where terrorism is concerned. The people responsible for the killings are the rioters and the mullahs who spurred them on.

Terrorism is nothing new, although it has taken on elevated political significance since the al-Qaeda attacks on the World Trade Center and the Pentagon in September 2001. The history of terrorism is thought to go back to the beginning of the first century AD, when a Jewish extremist group called the Sicarii Zealots attacked collaborators with Rome. Why should such an ancient form of violence suddenly threaten our core freedoms? Freedom of speech is a great idea especially because we are at war. It is a war that the West will probably always be waging. Although he refers to World War II, Graham is most likely thinking of World War I when President Woodrow Wilson passed the Espionage Act 1917 and the Sedition Act 1918. The second of these two laws was a horrible overreach that forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. It was thankfully repealed two years later. This goes to show just how fragile freedom of speech can be, particularly in times of war. The Espionage Act is still in force today and Congress are attempting to use it to prosecute Julian Assange of Wikileaks.

Does the action of one crackpot in Florida put our troops at risk? No. That would be attaching too much importance to Pastor Terry Jones. Let's not inflate his ego or next thing he'll be setting mosques alight. What might put our troops at risk is United States foreign policy. I believe General Petraeus would agree. As Jim Treacher of The Daily Caller says in the headline of his article from the 4th of April, "The President of the United States bombs a Muslim country, and some nobody in Florida burns a Koran. Guess which one's to blame for rioting in Afghanistan?" Yes, the rioters were incited to violence. However the blame for this lies squarely on the shoulders of a few angry mullahs, not some idiot halfway round the globe who burned a book.

What got me thinking about this again was something my friend Padraig Reidy of Index on Censorhip wrote about the Independent columnist Yasmin Alibhai-Brown and her "interesting" take on freedom of speech as she outlined it in her column today. Some may remember Alibhai-Brown for her involvement in a case that briefly paralleled the Twitter Joke Trial, when she initially sought the prosecution of conservative councillor Gareth Compton over a provocative comment he made about her on Twitter. Free speech seems to be a difficult concept for some people to grasp. Our prejudices sometimes get in the way. This is precisely why it must be protected.