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Column The Twitter joke trial shows freedom of speech has to include comedy

It doesn’t matter if comedy is offensive or upsetting – free speech must allow for all speech, writes Simon Carty.

THE FAMED AMERICAN Judge Oliver Wendell Holmes once said that the right to free speech does not allow the speaker to “falsely shout fire in crowded theatre”. He meant that if you say something both dangerous and false it does not necessarily mean that it is covered by the right to free speech.

This morning a 27-year-old man called Paul Chambers won his appeal in the British High Court and had his conviction for sending a menacing tweet overturned on appeal.

By way of background: during the great snow of January 2010 Chambers was traveling to meet his girlfriend at Robin Hood Airport in Doncaster when he found out the airport had been closed by snow. Eager to see his girlfriend, he sent out a frustrated tweet on Twitter (which is a publicly accessible site), declaring:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!

It is important here to note that this tweet was only sent to the few hundred people that then followed Paul Chambers and was not sent directly to the airport; nor was the airport copied in on the tweet by adding their existing Twitter account name to the tweet.

For non- Twitter users, a tweet which starts with @DSA_Airport would be sent directly to the Robin Hood Airport Twitter account, while a tweet which included @DSA_Airport in the body would also be sent to the airport’s Twitter account. If this had been done it would have strengthened the prosecution’s case that the tweet was ‘menacing’ as it could have been argued that Chambers purposefully intended to send his tweet to the airport. However, in this case neither happened and Chambers simply sent the tweet to his Twitter followers.

A few days later an employee at the airport was doing an unrelated random search of Twitter for references to Robin Hood Airport –  and it was then that he saw Chambers’s tweet. Apparently he knew it was a joke but the tweet was submitted to superiors anyway; this is standard procedure at most organisation which monitor tweets which mention them.

A few days later police raided Chambers place of work and arrested him. His house was searched and his computer and phone were confiscated. He was marched off in front of work colleagues by Terrorist Prevention Police to be questioned. He was effectively a terrorist suspect arrested on suspicion of airport bombing.

Crucially, the police indicated after investigating him (and this is a direct quote from their record system) that “there is no evidence at this stage to suggest that this is anything other than a foolish comment posted on Twitter, as a joke for only his close friends to see”.

How the situation escalated dramatically

So that should have been the end of it. However the police referred the matter to the Crown Prosecution Services (CPS),  the equivalent of our DPP. The CPS saw that it was clearly not a terrorist offense – but some bright spark decided to prosecute Chambers for sending a message of “a menacing character” under section 127 of the Communications Act 2003.

This offense is a statute-created Absolute Offense, similar to speeding, for example, because the issue of whether the accused intended to commit the crime or not does not matter. This mean Chambers had difficulty raising a defense that the tweet was a joke.According to the law the tweet (the message) was of a ‘menacing character’ and, therefore, if Chambers could not show that it wasn’t menacing, or there was some technicality, then he was going to be convicted and fined.

Because of this, Chambers was convicted and fined under the Communications Act 2003. He was fined £385 (€488) and ordered to pay £600 (€762) costs. He lost his job as a consequence because you are unable to qualify as an accountant if you have a criminal record. Therefore, facing a huge potential hurdle to further his career he had no option but to seek an appeal in order to restore his name and allow him to continue his career as an accountant.

The first appealed was rejected as the court held that the Tweet was “clearly menacing”, and that Chambers must have known that it might be taken seriously and the airport staff were suitably concerned to report it. In response, thousands of Twitter users repeated Chambers’s initial Tweet and the hashtag #iamspartacus, in reference to the climactic scene from 1960 film Spartacus.

Chambers then took his appeal to the High Court. The appeal was entirely on points of law and centred on the correct interpretation of section 127(1) of the Communications Act 2003. This appeal was lost in February 2012 and led to a lot of criticism from Twitter users that the judges were out of touch and did not understand Twitter or its usage.

Chamber had one last avenue of appeal, again to the High Court, and a judgement was reserved in June. It was understood that panel of three judges was split – a rare occurrence – and they needed more time before reaching their decision. Hence the judgement was reserved until this morning when the Lord Chief Justice, Lord Judge, sitting with Mr Justice Owen and Mr Justice Griffith Williams, said:

We have concluded that, on an objective assessment, the decision of the crown court that this ‘tweet’ constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.

The tweet was not funny or clever – but it was clearly a joke

It was a ridiculous situation and over the last two years Chambers had found much support. A lot of it came from comedy and showbiz people: Stephen Fry, for example,  funded Chambers legal costs. Graham Linehan wouldn’t stop talking about it on Twitter. The comedian Al Murray hosted fundraisers and attended the court with Chambers, accompanied by Fry.

Chambers’s original tweet was neither funny nor clever and in some circumstances may even be offensive, but it was clearly a joke; – and whether we like it or not,  people have a right to express themselves (as long as it causes no harm, as in the above words of Judge Wendell Holmes) and make bad jokes.

Americans have the First Amendment to their Constitution which guarantees free speech, but despite this, comedy has been particularly susceptible to efforts to limit free speech in the US. Lenny Bruce, the father of modern stand-up comedy, was arrested on several occasions for using obscenity. It got so bad that undercover policemen would attend his shows and arrest him afterwards if they felt he had been offensive. Bruce was charged and convicted but died on bail while awaiting an appeal. The appeal was won and he was pardoned posthumously.

As anyone who saw the movie “The People vs Larry Flynt” will recall, Hustler magazine and its publisher, Larry Flynt, were in and out of court on obscenity charges all the time.  in the most well-known case, televangelist Jerry Falwell took umbrage at a satirical ad published in Hustler which said his first sexual experience was with his mother. Falwell sued, and Hustler and Flynt adopted the First Amendment defense: that the satire was a joke and they were protected by freedom of expression.

The Supreme Court ruled in favour of Hustler and said that freedom to speak one’s mind was “essential to the common quest for truth and the vitality of society as a whole”.

In other words free speech must allow all speech, no matter how offensive or upsetting,  because if jokes or speech we find offensive are curtailed then it can only mean all speech will eventually be curtailed.

Chambers’s tweet was clearly a joke and his prosecution might be ridiculous. However, the learned High Court judges this morning did not address the issue of the tweet being a joke, nor did they address the issue of freedom of speech; they merely held that the tweet was not, in these circumstances, open to be considered menacing.

It is entirely possible that the next person prosecuted for sending a menacing tweet, no matter how innocent, might not be so lucky.

Simon Carty is a solicitor and mediator who specialises in entertainment law and is a member of the production team for the BBC/RTE sit-com Mrs Brown’s Boys

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