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Freedom of Screech

October 11, 2012

[Azhar Ahmed, a 20 year-old] man who posted a Facebook message following the deaths of six British soldiers which said: “All soldiers should die and go to hell” has been sentenced to [240 hours of community service] and costs of £300 by magistrates.

Anyone who has read anything on this site probably already knows how I feel about this.

Sentencing him on Tuesday, the district judge Jane Goodwin told him he was “particularly foolish” and the damage caused by his comments, which could be seen by at least 600 Facebook users, had been substantial.

“You posted the message in response to tributes and messages of sympathy,” she said. “You knew at the time that this was an emotive and sensitive issue.” She said with freedom of speech comes responsibility and on 8 March “you failed to live up to that responsibility”.

And this sentence comes just 24 hours after a 19 year-old was given three months in jail for posting jokes online about a missing schoolgirl (on a website warningly entitled Sickipedia, no less). The United Kingdom has decided to start down the slippery slope of “sending a grossly offensive communication.” While the sensitivity argument may have some emotional/fairness appeal, and even some legal precedent, I simply cannot condone the thoroughly British interpretation of freedom of speech that criminalizes even “grossly offensive” speech. As though Orwell didn’t have enough reason to spin in his grave.

Azhar Ahmed’s posts were churlish, to be sure, but were they worthy of criminal punishment by the state and the possibility of jail time? Who does a Facebook post hurt? Where is the real-world consequence? Even if some sensitive widow read that and cried, should society be in the business of penalizing people for being mean? Should there even be a crime of “sending a grossly offensive communication” by today’s standards of “offense”?

The U.S. may have some laws on the books that involve punishment of speech, but they’re certainly not enforced regularly (they’re mostly of the espionage variety or are dusty and on the books solely due to lack of repeal). The much more frequent mechanism for restraining speech is by tort law (usually defined as a private action for redressing a wrong that causes some harm), and in this situation it would be the intentional infliction of emotional distress. In terms of the development of the common law, intentional infliction of emotional distress wasn’t even a recognized tort until 1897, on the grounds that there could be no assault without physical contact. And even then it came out of the acknowledgment that even fright could have real physical results, including miscarriage and shock (in the medical sense). Simply put, the infliction of emotional distress was recognized as a tort in situations where there was actually some clear manifestation of an injury.

America diverges from the common law interpretation by operation of the First Amendment (which of course was enacted long before intentional infliction of emotional distress was recognized as a tort). We have a clear exception to this tort when political speech is at stake, as famously exemplified in the Hustler v. Falwell case. Politics is simply that important to our national genetics.

America treats speech with deference because liberal society recognizes that speech has to be unrestrained for freedom in general to exist. When the state has the power to punish ideas it deems “beyond the pale” as defined by the state, then the established power has a monopoly on power that is supposed to rest with the people (at least in America). In the modern context, we have clear evidence that this premise is fundamental, and that speech should be as frictionless as possible in order to reap the benefits of a free marketplace of ideas.

The strength of a society’s liberties is measured by how well a society protects those it detests and must tolerate, not only those whom are supported and celebrated. That kind of legal system gives a veto to those who simply don’t like an unpopular idea (and Ahmed provides the case in point), regardless of whether there is any actual consequence of his speech other than the upturning of a few noses.

I’m not sure whether Ahmed’s posts would have been protected as political speech in the United States, given the vague nature of some of his comments (even though others are a cogent-enough critique of one-sided perceptions of victimhood). I’d like to believe that he would have had some protection for even his unpopular viewpoints. But when the troops and “national security” are in the mix, as I’ve said before, the constitutional calculus gets very messy.

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