Dear Mike Buchanan,
Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week.
FSU’s ‘Orwell Surprised’ T-Shirts now available to purchase!
We are excited to announce that you can now purchase our exclusive T-shirts online, featuring Bob Moran’s fabulous ‘Orwell Surprised’ cartoon. For only £20, including first class UK postage, you can show your support for free speech while helping us raise funds to continue doing what we do best. Due to popular demand, we have ordered extra stock. If you order before 1st December, they should arrive in time for Christmas. You can access the sales page by clicking here.
The FSU Comedy Night Christmas Special – tickets now available!
Round up your comedy-loving friends for The FSU Christmas Special, a one night only extravaganza of comedy with a fabulous line-up, organised in association with Comedy Unleashed, the home of free-thinking comedy. The event takes place on Monday 12th December, 7pm – 10pm at the Backyard Comedy Club, Bethnal Green. Master of ceremonies is comedy legend Bobby Davro, who will be joined on stage by stand-up comedian Lee Hurst, Comedy Unleashed favourite Mary Bourke and Radio 4 and GB News presenter Simon Evans. This event is open to the public, so please spread the word. Tickets are on sale here.
Online Christmas Review for FSU members – register here!
On Tuesday 13th December, all members are invited to join FSU staff at our Online Christmas Review. We’ll discuss the free speech highs and lows of the year and vote for 2022’s free speech heroes and zeroes. Register to receive the Zoom link by clicking here.
The Online Safety Bill – reasons to be cheerful?
“Defending free speech seriously,” writes Marc Glendening, “means defending the right to expression of those we vehemently disagree with, are embarrassed to be associated with, and whose outpourings we find repugnant” (Cap X). It’s for that reason that he thinks “political liberals worthy of the title” should be appalled by the decision of Westminster Magistrates Court to imprison two Metropolitan police officers, Jonathon Cobban and Joel Borders, under s127 of the Communications Act for sending “grossly offensive” messages via WhatsApp – to each other. Their messages on a private group that included PC Wayne Couzens, the murderer of Sarah Everard, contained what they claim was ‘banter’ about raping a colleague (a “sneaky b****”), tasering children and people with disabilities (“zap zap you little f******”) and “shooting some c*** in the face” (BBC, Guardian, Mail, Sky News, Telegraph).
The messages they exchanged make for grim, deeply unpleasant reading, and you could certainly make the case for the Met suspending or expelling their two employees for breach of contract. But a custodial sentence for conversations that took place in what was supposed to be an entirely private setting and only came to other people’s attention thanks to Ms Everard’s murder? In a free society people should be free to be grossly offensive, Marc Glendening says, because any idea of what constitutes ‘the gross’ and ‘the offensive’ is, by definition, a matter of opinion.
Section 127 makes it a crime punishable by up to six months in prison to post anything “grossly offensive” on an “electronic communications network”. In recent years, police and prosecutors have jumped at any opportunity to enforce this law whenever someone complains that they feel hurt by what they have seen online or on social media (Spiked). People who’ve been brought to heel in this manner include Scottish comedian Count Dankula (convicted of a hate crime for filming a pet dog giving Nazi salutes), Kate Scottow (fined for being rude to a trans activist on social media), Caroline Farrow (threatened with a criminal record for misgendering a trans activist) and Joe Kelly (someone the FSU is currently supporting in his appeal against a conviction for a social media post in which he rejoiced at the death of Captain Sir Tom Moore).
For anyone who believes in freedom of expression, the current application of s127 is bad enough. But as FSU Advisory Council Member Andrew Tettenborm points out, what’s so worrying about the conviction of the two police officers is that it’s the consequence of a form of legislative ‘mission creep’, with the state now looking to use the Communications Act to police not just public, but private interactions. We got a taste of this earlier in the year when Paul Bussetti was handed a 10-week suspended sentence for filming a video of a burning cardboard mock-up of Grenfell Tower and sending it to a group of friends on a private WhatsApp group (Evening Standard). Two people have since been given prison sentences for sharing an offensive video in private groups on Snapchat (Mirror).
The powers-that-be apparently see no problem in this. The sentencing judge in the case of PC Cobban and Mr Borders, for instance, found the fact that the policemen only conversed in private not so much a mitigation as an aggravation. In being covert, the judge claimed, their comments were even more damaging than if they had been made in public. “Let that sink in,” Andrew Tettenborm urges. “The judge seems to have seen the law as a tool for tackling heresy – for rooting out bad thoughts wherever they might occur and making sure that the people who express them are severely punished.” This use of the law to control private thought “should terrify us”, he says.
Andrew does however think that there is “one hope we can cling to” – the Online Safety Bill. As unlikely as it may seem, this legislation, as currently written, will, on the recommendation of the Law Commission of England and Wales, repeal s127, as well as the Malicious Communications Act 1998, replacing those offences with a new harmful communications offence, whereby it becomes an offence, punishable by up to two years in prison, to say something that causes another person “serious distress”.
At first glance that might not appear particularly promising, simply substituting one entirely subjective definition – “grossly offensive” – for another – “serious distress” – such that judges will still be allowed to criminalise anything they think is unpleasant or hurtful. Yet in its proposals to the Government, the Law Commission was clear that the new offences would set a higher threshold for criminal liability than the current rules. That message is reflected in the legislation. As per clause 151 of the Online Safety Bill, for a person to be prosecuted of this new offence the prosecution will need to prove the following:
- there was a “real and substantial risk” the message “would cause harm to a likely audience”
- the person intended to cause harm to a likely audience; and
- the person had no reasonable excuse for sending the message.
The Bill goes on to suggest that an individual is a “likely audience” of a message “if, at the time the message is sent, it is reasonably foreseeable that the individual would encounter the message”. The FSU has concerns about how, in practice, a court will interpret that term – after all, it could be argued that a Twitter user’s “likely audience” is, in any given case, potentially the whole world – and our General Secretary, Toby Young, has written about those concerns here and here.
That said, it’s a definition that would undeniably be helpful in instances where off-colour WhatsApp messages had been shared between individuals and then subsequently shared more widely – in such cases, an individual would not be liable, because he or she did not intend, or even foresee, that a wider audience would subsequently see the messages. That’s why on paper the Online Safety Bill looks set to reduce the number of people prosecuted for sending offensive messages to each other in private WhatsApp groups – or, as Andrew Tettenborm puts it, the state “tackling heresy” by “rooting out bad thoughts wherever they might occur”. The question now, of course, is whether it will do so in practice.
You can read the FSU’s briefing on the Law Commission’s Proposed Changes to the Communications Act 2003 here. Our briefings on the Online Safety Bill are available here, here and here.
Cambridge college master refuses to apologise for calling gender-critical speaker “hateful”
The Master of Gonville and Caius who wrote to students calling Helen Joyce’s views “offensive, insulting and hateful to members of our community who live and work here” – this was after she’d been invited to speak at the College by a Fellow – has now written to alumni after furious donors threatened to pull funding (Mail, Telegraph, Times).
Author and former Economist journalist Dr Helen Joyce had been invited by FSU Advisory Council member Professor Arif Ahmed, a Cambridge philosophy professor, to be interviewed by Sir Partha Dasgupta, in a talk entitled “Criticising gender-identity ideology: what happens when speech is silenced?” Dr Joyce believes biological sex is binary and immutable and has been vocal about her view that men and women are being “redefined” by trans activists, with laws and policies reshaped to privilege gender identity over biological sex.
Given Dr Joyce’s gender-critical stance it was entirely predictable that students would launch protests, with the college’s LGBT reps all claiming to be “unanimously disgusted by the platforming of such views” and tutors opening a ‘safe space welfare tearoom’ for students during the talk [pass the smelling salts, dearie]. In the days leading up to Dr Joyce’s speaking engagement, the College Master, Professor Pippa Rogerson, and the Senior Tutor, Dr Andrew Spencer, decided to give the incipient mob a quick, coquettish flash of their own pitchforks, emailing all students of the College to tell them how much they disapproved of Dr Joyce’s views (Telegraph).
No doubt suitably encouraged by Prof Rogerson’s highly suggestive language – some might even call it a ‘dog-whistle’ – around a hundred trans rights protesters, some masked, gathered outside the talk last month chanting “trans rights are human rights” and banging drums. Witnesses claimed a fire door was hit and microphones had to be turned to full volume because Dr Joyce was inaudible. (You can watch Dr Joyce’s address and assess the level of disruption for yourself here).
The duo’s intervention led donors to say they were “embarrassed, appalled and absolutely disgusted” and would not give any more to the college without a retraction and an apology (Telegraph). One of the flurry of alumni to send protest letters was Nick Sallnow-Smith, 72, who graduated from Gonville and Caius in 1973. “I have been extremely upset by the way in which the master and senior tutor have behaved… it’s absolutely disgraceful,” he said, adding that: “With people like that in charge I will never donate again.”
Writing in the Telegraph, Douglas Murray describes Professor Rogerson’s subsequent letter to alumni as a “U-turn”. Reading her mea culpa, he said, was “like watching the slowest kid in the class catching up with everybody else and then expecting applause”.
But is there really that much for any self-respecting free speech warrior to be clapping? True, Professor Rogerson’s letter describes free speech as “fundamental”, but it also contains the sort of self-serving justifications for her own recent behaviour that make it difficult to believe she really does value free speech.
There were “difficult and complex discussions” around trans matters, she says. That was why, in their email communication with students condemning Dr Joyce’s talk, she and Dr Spencer had felt it necessary to “express our personal opinions – as is our right”.
Professor Rogerson and Dr Spencer’s email did indeed address students “in our personal capacities, not as Master and Senior Tutor, but as Pippa and Andrew”. Yet as the FSU pointed out in its letter of complaint to the College Council, they fired that address off from Professor Rogerson’s University email address while accessing official and reserved university mailing lists. That’s important because it suggests the letter may have constituted a breach of the College Master’s duty under section 43 of the Education Act 1986 – a provision which obliges every individual and body of persons concerned in the governance of a university to take reasonably practicable steps to secure freedom of speech within the law. Such steps are carefully set out in the University’s Statement on Freedom of Speech and were clearly disregarded by Professor Rogerson.
“Having given the matter a lot of thought,” Professor Rogerson’s apology letter continues, “I disagree with [Dr Joyce’s] views, the way she presents them, and the way in which she responds to those who disagree with her.” Given the context, it’s what you might politely call an ‘indelicate’ remark. Rather than attempting to explain her own behaviour to the college’s wealthy, free speech loving and, up until now, open-handed benefactors, ‘Pippa’ decides instead to draw their attention to another of Dr Joyce’s perceived personal failings that either hadn’t previously occurred to her, or that she forgot to mention during her last publicly delivered character assassination — this dreadful woman isn’t just “offensive, insulting and hateful”, but ill-mannered too.
The more pertinent issue, and one that Professor Rogerson’s letter fails to address, is the appropriateness of her own manner of responding to, as she might put it, “those who disagree with her”. As College Master, she is surely obliged to uphold the College’s Statement on Freedom of speech, which says: “The college expects all Fellows, staff and students to engage with intellectual and ideological challenges in a constructive, questioning and peaceable way, even if they find the viewpoints expressed to be disagreeable, unwelcome or distasteful.”
There was nothing at all “constructive” in mischaracterising Dr Joyce’s views as “offensive, insulting and hateful”, her dismissal of Dr Joyce’s work as “polemics” or her public declaration that she wouldn’t be attending Dr Joyce’s talk. Indeed, does any of that even warrant description as “engaging” with “intellectual and ideological challenges” in the first place? The Master didn’t simply breach the requirements of the Statement – she acted as though it didn’t exist.
According to the Telegraph, many Cambridge alumni felt much the same way. More have apparently since written in to complain, with others now threatening to pull bequests or urge their own children not to attend the university.
Joe Kelly fundraiser – show your support!
One of the FSU’s highest-profile current cases is that of Joe Kelly. It’s a case that will test your commitment to free speech to the limit. Mr Kelly was convicted and sentenced in Scotland for contravening the Communications Act 2003, section 127(1)(b), which makes it a criminal offence to make an electronic post which is “grossly offensive”.
Joe was at home on 3rd February 2021 when he tweeted “the only good Brit soldier is a deed [i.e., dead] one, burn auld fella buuuuurn” along with a picture of Captain Tom, who’d just died.
When he started receiving death threats almost immediately, Joe deleted the tweet, but someone has already reported him to the police and following a long legal process Scotland’s prosecution service threw the book at him. He was convicted and sentenced to a community payback order.
Having had his appeal denied by the Scottish Courts, Joe is seeking to take his case to the European Court of Human Rights. And we’re supporting him.
Everyone at the FSU is heartened by the comments people who’ve donated to Joe’s fundraiser have been leaving on his appeal page. Here’s a few of them:
“I’m a British soldier – but I’m also a member of the FSU, and for that reason I’m pleased to pledge my support for this campaign for justice.”
“This pledge sticks in my craw but the principle is more important.”
“Don’t like what you tweeted mate, but I’ll cough up to defend your right to tweet it.”
We know this is a tough case and not all our members will support us. But if you do, please consider donating to the Crowdfunder – the link is here.
This case is about more than Joe’s own fight for justice – the right to offend is a crucial element of free speech, as Lord Justice Sedley said in Redmond-Bate v DPP: “Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
We don’t think Joe’s comment was intended to provoke violence, offensive though it was. All donations gratefully received.
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Best wishes,
Freddie Attenborough
Communications Officer
Justice for Men & Boys 