Or should we deal with it at all?
Sean Duffy targeted the relatives of dead teenagers with defaced pictures of the teenagers and offensive messages. His victims were unknown to him. He has been jailed for 18 weeks.
What is the opinion of Samizdata readers on whether he should have been jailed, and if not, whether there are any legitimate means of stopping him? (I trust it is already the opinion of Samizdata readers that he is a foul excuse for a human being.) If he had sent personal emails to the relatives, then I think most of us could, with a sigh of relief, invoke concepts of private property and harassment. Actually, having just written that I have become unsure about it. Moot point, anyway; as far as I can see he either posted his offensive messages on Facebook pages open to all or made his own websites. Some of his messages were also libelous – so much so that I cannot understand why he has not been prosecuted for libel – but others were not, despite their malice. It is the latter category that present the difficulty for believers in free speech.
Or perhaps all I have done is demonstrate that I am not such a strong believer in free speech as I thought.
Another possible get-out clause is that the web hosts, or Facebook, or the Internet Service Providers should ‘do something’. I am almost fanatically opposed to making them do something, but I agree they should. But what if they won’t, or can’t, or can’t quickly enough?
Another line of thought: there has long been a catch all in English law of “conduct likely to cause a breach of the peace”. That could work, but I do not like the way it makes the test whether the victim of outrageous speech is likely to turn violent. It puts the most peaceable or timid victims at a disadvantage.
Similar questions arise regarding the calculated offensiveness of the extended family cult known as the Westboro Baptist Church. One solution was an emergency law:
In January 2011, Westboro announced that they would picket the funeral of Christina Green, a 9-year-old victim of the 2011 Tucson shooting. In response, the Arizona legislature passed an emergency bill to ban protests within 300 feet of a funeral service, and Tucson residents made plans to shield the funeral from protesters.
The law seems to have done the job it was intended for … but it and similar laws remain on the books setting a dangerous precedent.
The common factor that takes Duffy and the Phelps family beyond the level of politically offensive speech (such as the Muslim provocateurs who disrupted the commemorative silence in honour of the victims of 9-11 held in London on Sunday) is the targeting of individuals.
A jail term, even a trial, is flat out wrong. The guy is scum, but those are the kinds of people speech protections are for. Was this Canada?
Regards — Cliff
Almost all political systems have problems with ‘boundary cases’. At least this is true of those that operate on principles, such as libertarian side constraints, if not of those that seek to optimise something, whether it be utility or liberty. While no comfort to the individuals on the receiving end of hurtful or libelous speech, the answer I think is that nothing should be done. As you point out its dangerous to set a precedence of government interference. And in most cases, one would hope, voluntary action would be taken to mitigate harm such as that in the example you’ve higlighted.
I think threats of violence are a clear case where law in appropriate as a person is entitled to take a person’s threats at face value and impute they are in actual danger and thus entitled to defend themselves, and be defended, from violence… likewise outright harassment (walking down the road screaming in someone’s face for example is no longer mere speech but enters the realm of physical intimidation). Untruthful slander than does not fall under the very broad blanket of ‘plausible opinion’ even may be suitable for law…
But ‘hurtful’ and ‘offensive’ speech?
No. Not enough and too subjective.
Egads! I can’t even believe you are considering this. Just imagine what the multi-culturalists would do with the concept of ‘hurtful’ speech. In fact, they are working on it now.
Stick to libel.
Government should not be taking any action in this case. However if the aggrieved party were to administer a very deserved beatdown in my presence I would go temporarily blind.
@Eric Tavenner
Agreed. Informal justice is sometimes the best solution to a problem. Not everything needs to be solved with another law.
May I suggest a duel? I think a challenge by one of the offended followed by a duel would work wonders. Eventually someone would put him down and that would be the end of it. One might argue that insufficient honor remains among the British for such a challenge, but I suspect the return of duelling would revive it.
Let us ban ALL speech, just in case! (After all, in some parts of Canada, just hearing any piece of English is hurtful to French-speakers!) In this age of text messaging, no-one has any excuse to make noises! no text messages should ever be censored, of course, except for the hateful and harmful ones- and Text Central could filter those, so they are never sent! TC sends you a stern, but not hate/hurt-ful, warning message, and that is that! A perfect world of mutes!
How do we square this with the subject of Natalie’s post from September 10?
Thanks, Eric and Steve. I was wondering if someone agreed with me.
These kinds of cases are not political issues. Not everything in human interaction is political. Making it political is a lazy way out.
These issues are deeply personal. Therefore, if my wife, my mother or my sister, my little brother or my old father are severely insulted, I will work to seek out the culprits and kick their butts commensurately. I will not duel them. A duel gives them more credit than they deserve. They have no honour. If I’m dealing with a group too large or people backed by an ideology, I would hope I could rely on the right-thinking folks in society to help me do some severe shaming and sidelining.
Alas, postmodernist ideology has changed all that. So now it is government to the rescue, another law for the tool box of future oppression and you that you act like I would want to, have to fear being prosecuted, locked up and, since you have something to lose, quickly stripped of some of your assets.
Still, if I ever have to, I hope I can live up to my ideals.
No penalties for “hurtful” speech. Likewise, no penalties for someone who responds to hurtful speech by, for example, horsewhipping the speaker afterwards.
With freedom comes responsibility — and in this case, “responsibility” requires enduring the consequences of one’s speech and actions.
I agree with Kim’s first paragraph but not his second. Speech (which we’re all apparently agreeing includes postings to Facebook pages and the like) does not cause physical harm; replying to it by inflicting physical injury is wrong and should be punished. (Of course, that requires proof in the requisite degree, and if no corroborating witnesses or other evidence can be found, well . . . .)
Of course, some forms of speech can cause emotional distress, and if that’s severe enough I suppose it could rise to the level of compensible injury. But that’s for a jury to decide in a civil lawsuit sounding in common law tort. In no way is it a criminal offense, so jail should not be a possibility.
Of course, when you all lynch one of your black neighbours for flirting with a white woman, and no witnesses come forward, we can just celebrate our strong community values and the support it gives for informal justice.
I don’t actually disagree with the odd beating, but it creates a tragic situation where the beater really has to accept the punishment coming to them as a price worth paying.
Laird, you wrote:
Do any readers know if such a case could be brought in English law? What about Scottish, US or other jurisdictions? Because that is the sort of thing I am “looking for”. (There is no denying that I am engaging in the theoretically unsound practice of starting with the conclusion I want – keeping free speech but getting the bastard somehow – and trying to work back to a principle to justify it.
The trouble is that the possibility of bringing a civil action for infliction of emotional distress is also vulnerable to definition creep. One can imagine the definition of what is actionable would soon spread to include the distress inflicted suffered, for instance, by a homosexual receiving a religious pamphlet saying that homosexuals were all going to hell, or the distress suffered by a deeply religious person on receiving a pamphlet saying that Jesus or Mohammed was evil.
I said “receives a pamphlet” then, showing how out of date I am. I was thinking of pamphlets distributed door to door. But it does bring in the idea that the question of targeting is relevant somehow. To go back to my example of the homosexual, receiving such an anti-homosexual pamphlet addressed to no one in particular is different from receiving an anonymous letter (or a signed one, come to think of it) saying that he personally is going to hell for his homosexuality. (What are the laws against poison pen letters? Are they ever used? Should they exist?)
Despite my concerns over definition creep, there already are plenty of cases where we already have laws that work reasonably well that forbid actions sometimes and allow them at other times. For instance, door to door evangelists are allowed to ring the bell and ask to talk. So long as they leave if asked to, that is fine. But someone ringing the bell at 4 a.m. to evangelise, or ringing it every hour throughout the day, would be committing an offence.
As you can see, my thoughts on this are far from firm.
You ever have that feeling when thoughts and caveats are spilling out of your head too quickly to keep up with?
Just to be clear, when I said
I didn’t wish to imply that the former should be allowed and the latter be forbidden or “stoppable”. It would be a very bad thing if the deeply religious person and the homosexual I made up for my previous example were to exchange heartfelt letters expressing their desperate disagreement (e.g. if they were fundamentalist mother and atheist, homosexual son) and the result of that were mutual civil actions for emotional damage. What I wanted to say was just that the individually targeted warning of hellfire is further from what is obviously political free speech.
I am going to buzz off and be quiet for a while now.
At least you don’t have to put with Chinese face culture and an “Offences Against Reputation Act” – there was a recent controversial case here in Taiwan of a girl being taken to court for criticizing a beef noodle joint on her blog. Among her comments were that it was “dirty” and “cock-roach infested”. So the judge goes to inspect the restaurant at a later date and finds it clean. Then he hands her down a U.S.$7,000 fine and a month’s detention with 2 years probation.
There’s no place in the situation described for government action of any sort. There’s no threat to the actual health, welfare or property of anyone involved. End of story.
Hurt feelings are an inescapable part of the human condition, and it is no part of the state’s business to try and alleviate them. Besides, what’s done is done – the horrible things that this person said have been said, and no government action can make them un-said. This prosecution amounts to the state visiting revenge upon one person because the things he said made another person feel bad.
If you allow the state to punish a person for hurting the feelings of another person, then free speech is dead.
The standard formula for such matters:
‘that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all . . . . liberty, because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own;
that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;’
And this expression
‘. . . Likewise, no penalties for someone who responds to hurtful speech by, for example, horsewhipping the speaker afterwards.’
is simply fatuous – it suggests that the state should condone private revenge for hurt feelings, which is the same thing as the state exacting criminal sanctions for hurt feelings. If your feelings are hurt – grow a pair. Man- or woman-up and ignore it, or get over it. Your mother was right when she taught you about sticks and stones.
Kim du Toit, you’ve hurt my feelings dreadfully in the past – you’ve suggested, in public, for all to hear. that I am a lawyer. There are few things that you could say to me that would hurt my feelings more. So you’re suggesting that, if I were to track you down and kick your ass for hurting my feelings, that the state should not interfere?
llater,
llamas
It would be nice if we could make a law saying “don’t be an extreme asshole, you won’t like what happens”. But then you have to define “asshole”. And after that, you have to define shades of “extreme”. Difficult job, and one that the nannies would immediately run with.
I suggest holmgang.
Emotional distress is potentially just as severe as any physical injury, and harder to treat. Broken bones can normally be healed within a couple of months, without complications; mental trauma can scar the mind for a lifetime, despite the best efforts of psychiatrists.
I’d say the appropriate legal standard is probably that the speech must be a premeditated act of malice, intended to cause severe emotional distress.
Definition creep is a problem, but it’s a problem with the entire legal system, not special to this particular issue, so it should be addressed by reforming the legal system, not by fiddling with the details of individual laws.
However, this isn’t really a new crime. It’s essentially just a poison pen letter in more modern guise, giving ample legal precedent.
So, what is the law on poison pen letters, and how were they normally handled?
Robert wrote:
‘Emotional distress is potentially just as severe as any physical injury, and harder to treat. Broken bones can normally be healed within a couple of months, without complications; mental trauma can scar the mind for a lifetime, despite the best efforts of psychiatrists.’
Not to hurt your feelings or anything, but this is – b*llocks. Psychobabble.
Plenty of people suffer the most horrible mental trauma imaginable – things a thousand times worse than some silly-ass posting by some silly-ass on the Interwebtubes – and are not ‘scarred for life’ by it. Equating some silly poison-pen chat-room postings with the horrible mental assaults that people suffer in wars, accidents, natural disasters and everyday life is simply asinine.
In my experience, what ‘scars’ people who suffer severe mental trauma (more often than not) is being endlessly reminded of it by the endless attentions of the psychiatric and counselling ‘professions’.
‘Poison pen’ letters, in the English legal tradition, have never been criminal. Neither should they be. We should not criminalize what amounts to an unpleasant but harmless nuisance.
llater,
llamas
llamas has the sense of it.
Once upon a time one was supposed to be able to say anything about anything you liked at Hyde Park Corner (except the Crown). How times have changed. We have become so sensitive.
Sticks and stones . . .
If someone is defamed it is a case for the courts.
If any physical violence is involved it is a case for the police.
Otherwise, grow up?
Have we lost the ability to treat lies, stupidity and bad manners with the contempt they deserve?
If we now have to legislate good manners then western society is truly doomed.
Leaving aside whether this should be a crime, this person is reportedly an alcoholic with Asperger’s syndrome. He admits to be addicted to commenting – something which many of us, I’m sure, can understand. He needs some treatment for his alcoholism (perhaps he’s got some) and some friends (difficult if he really does have Asperger’s syndrome, I know). What does society gain by locking him up at great expense? He will need to be segregated or else he will be destroyed. The publicity for his actions is punishment enough.
Trite observation of the day: hard cases make bad law.
I’m with chuck – bring back duelling. The Westboro mob are protesting at military funerals – how many duels with pistols do you think they’d win? The congregation would be down to zero before you could say, “God hates fa…”
Nonsense on stilts. Physical brain damage caused by me kicking you in the head with my steel toed boots because you pissed me off by causing me ’emotional distress’ cannot be treated at all… and it would rightly be a matter for the police.
Unlike mere ’emotional distress’. If the ’emotional distress’ is caused by credible threats of violence, well sure, but then it is the threat, not the ’emotional distress’ that is amenable to remedy by law.
On occasion I have gone out of my way to inflict ’emotional distress’ on other people because I thought they fucking well deserved it. Were they scared for life? Well I certainly hope so but sadly I suspect they got over it eventually, more is the pity. Life is tough, buy a helmet.
Trite? Not really, more like “Undeniable fact of the day”.
Llamas, I’d agree that the psychiatric profession is full of pseudo-scientific babble, which does more harm than help, but the folk wisdom you cite is no better. Treating old cliches and proverbs as if they had any merit is as worthless as treating Freud’s nonsense like holy writ.
Telling children to ignore name-calling is just a time-honoured way to tell them to stop bothering their parents, like ‘children should be seen and not heard’. It does happen to be the right advice sometimes, but only by coincidence.
As it happens, I know someone who was driven to attempt suicide by emotional abuse. They recovered in the end, but nit because of trite slogans or the psychiatric profession (both equally useless). If you think such incidents are a laughing matter, I can only wonder about you.
Anyway, society generally recognises there are some things that should not be said – fighting words, don’t speak ill of the dead, etc. The law may not, but that brings it into disrespect, just as when the human rights act is stretched beyond credibility for the sake of ideological purity.
Trite observation of the day: hard cases make bad law.
Trite? Not really, more like “Undeniable fact of the day”.
Someone (it might have been Radley Balko) recently said that “Any law named after a dead child is a bad law”, which I think is a corollary of the above, perhaps combined with the observation that the more emotional is the reaction to the crime, the worse the resulting justice is likely to be.
Perhaps we should begin to accept violent personal reactions to intentional personal affronts.
The trend has been away from that, even in cases in which there has been personal physical attack and the response has been deemed “excessive” or “inappropriate.”
Much of this kind of issue turns on whether there are more of “us” than “them.”
If someone were to go to the house of an “offender” and do physical harm or property destruction, an acceptable defence might be “emotional distress.” That has even mitigated homicide charges.
What is not discussed here is that crucial element – motivation.
On balance I believe that what you gain from censuring scum like Duffy does not justify what you lose. Namely, you give up the right to say things that might be regarded as equally awful by the public, but nonetheless need saying.
I’m in favour of the right to say anything up to (but not including) actual threats – but I draw the line there.
As a side note, whenever I have encountered internet trolls, a Sean Duffy is exactly what I pictured. I’m glad to see my instincts were correct.
I’m not sure punishing him really does much good. His existence is his punishment. By the looks of things, a far more severe one that the courts could ever hand down.
Of course, when you all lynch one of your black neighbours for flirting with a white woman, and no witnesses come forward, we can just celebrate our strong community values and the support it gives for informal justice.
And the next month they might run some Nazis out of town. Community is like that, there is no getting around it. It is the human condition. The plus side is that you have allies and help in a dangerous and difficult world. The down side is that you might not be accepted into the community.
Can the law replace community? Can the law replace the smallest community unit, the family? I think not. And the loss of community leads to isolation and, eventually, disorder violence, and crime.
So how is it he goes to jail for posting it, but the newspapers don’t?
This is ridiculous.
“Community is like that, there is no getting around it. It is the human condition.”
Yes there is a way around it: By instilling and maintaining a moral code in the individual for dealing appropriately with such crap as it arises.
Same as for a libel – the reporter does not go to jail for reporting what was said in court.
That reminds me of a point I wanted to make: we do (most of us) already accept that speech or writing can be actionable in the cases of slander and libel. The harm done by messages such as Duffy’s is greater than many libels – most people would prefer to have it suggested that they were adulterers, for instance, than to get the sort of messages regarding their dead child that he sent.
Yet I still see the dangers of making harm the test. But we do already make highly subjective judgments of harm in settling libel damages etc.
By instilling and maintaining a moral code in the individual for dealing appropriately with such crap as it arises.
You’ve never known or heard of a bigoted or murderous moralist? And one moral code outlawed suttee while another supported it. I’ve never heard of a moral code that didn’t go wrong on occasion. I agree that a moral code is the core of a community, but that hardly solves the problem. Moral arguments can be adduced to support all sorts of behaviour you might deplore.
There used to be a Common Law doctrine of “fighting words” – still sometimes mentioned in some parts of the United States.
A man insults you, or (more) someone really close to you – and you hit him.
The courts would take it into mitigation with your punishment.
And the insult need not be words from your mouth – it could be poster (“The dead Mrs So and So was a whore who died of the pox……”) the modern thing would be an internet posting.
Killing the insulter was still criminal (technically Andrew Jackson, who had a habit of killing people who insulted his wife [although always, I hasten to add, by demanding they duel with him – he never killed a man who did not have a weapon], could have been tried for murder) indeed even hitting a person (or flogging them with a horsewhip for refusing to duel) was criminal.
However, punishments were lighter than if there had been no “fighting words”.
In the modern context……
If the parents of this dead child had given the boy a whipping, I would still have arrested them.
Indeed I would still have punished them.
But the punishment would have been light.
Say a few days community service picking up litter.
Another way of putting it……
“Policeman John Smith called my dead child a ……”
“I am sorry that is not a criminal offence Sir”.
“Mr Smith”
“You talking to me you F…..”
“Yes I am Mr Smith – come walk with me, I want to teach you to shoot. Look I have two pistols with me – one for me and one for you, they both the same and both loaded”.
“I will not go – you can not make me”.
“I have no intention of making you do anything – but from now on (as you would not come) I, and everyone else in town, is going to call you the Cowardly Scumbag that you are. That is your new name”.
The policeman (whilst on duty) should not call Mr Smith, Cowardly Scumbag – but if asked to “help” should simply reply…..
“No one has laid a finger upon you Sir – or threatened to do so”.
Mr Smith will eventually make a mistake – lose his temper and hit someone.
Then he can be punished.
The problem with any law attempting to deal with this case is that it will rapidly break the – in my view – purpose of Law, that is to defend innocent people from conviction and harassment (implicitly, by the State, the rich and the powerful).
Trying to “protect” people is fatal.
Chuck – I agree – community is like that. A liberal community however behaves to some standards even with people who are not popular. The debate I think is about a particular kind of community.
If I “run you out of towtn” by the device of no one treating with you, so you have no food, no services, no contact, no information, you have no complaint.
And each member of that community would need to be under social pressure to participate in such shunning. In a large complex society, where shunning is enforced by more shunning, we can construct a theoretically liberal community with some strong social and community conventions.
But I can’t help thinking at some point we place a lot of power in the hands of the process or institution that decides who gets shunned, at at some point it no longer an actually liberal society whatever the theoretical principles we are still holding to.
Paul Marks – I completely agree with your point about mitigation. Some situations cannot be neatly solved – they are insoluble like a Greek tragedy. You do the act and accept that it will be punished – and do it anyway.
Once more, I offer the thought that many of society’s little awkwardnesses could be ameliorated if only we took a more relaxed attitude towards justifiable homicide.
This is why we have juries — and jury nullification.
“How should we deal with extreme hurtful speech directed at individuals?”
Get as many people as you can to voice their support for the victim and denounce the protagonist.
What a curious response by a bunch of libertarians. A duel? legalized horsewhipping? Someone said something mean and that justifies you beating them up? What is this grade school?
The solution is very simple: don’t feed the trolls.
If you find something offensive, don’t read it or look at it. If someone forces you to look at it by going on private property or harassing you then you have a common law right to appropriate relief. If you really can’t bear it, complain to the ISP and ask them if the post violates their AUP.
Putting people in jail for being tasteless dickheads is outrageous. If we are going to do that, can we head down the the Tate gallery and have a look at some of those guys first?
@Fraser – “Putting people in jail for being tasteless dickheads is outrageous”
Tell that to the American Government. Their response has been the adoption of Cyber-stalking laws.
It came from a case of a teen age girl committing suicide due to some adults being extreme dickheads to her online.
Many laws against hate-crime are used by some religions (note- I did not say ISLAM, though, if you think that, I can’t stop you) to silence any discussion of their religion. Mark Steyn was victimised this way in Canada, accused of Islamophobia. All in the name of ‘not offending anyone’.
“Do not feed the trolls” is good general advice.
But totally useless in these specific circumstances.
Nor have I ever said that horse whipping should be legalized.
Paul Marks says:
> But totally useless in these specific circumstances.
Really? What makes that the case? Why can’t they delete the offending posts, and block the offender from their facebook page? Or perhaps if they couldn’t face the task themselves, delegate it to some loving friend? Or perhaps they could ask facebook themselves to deal with it (perhaps with the assistance of the press.) There are a lot of possibilities. The criminal justice system is not the appropriate venue.
> Nor have I ever said that horse whipping should be legalized.
I never said you did, however, another commenter did.
He should absolutely not been sent to jail, or even prosecuted. I would agree with him being physically attacked in any other way either, because initiating violence is wrong. A counter campaign would probably not work either as that is the kind of thing that trolls want. However since he was using a private service to post his bile I would have no problem with requesting that the company prevent him from using that service again.