Free speech, it seems, is in the news again, what with section 5 of the 1986 public order Act being vigorously debated, and Archbishop Cranmer back in the news for allegedly disturbing the peace over at the Advertising Standards Authority.
Paddy Power, too: according to various pundits it has been forced to remove its “Ladies’ Day” ad from the airwaves because it “gave offense” to the trans community. Some are sticking up for the law here. Others, including Peter Tatchell, are not so sure.
Personally, as on a range of issues, I’m with Tatchell on this one.
Because a real problem is what I tend to call institutional abuse (of power). For more background to the specifics of this debate, go seek out the brilliant Zoe Williams over at the Guardian.
Criminalising alarm – the Corporal Jones approach to law
In the meantime, let’s start with the basics. s5 is about words, behaviour or display that causes another person to feel alarmed, distressed or harassed. That’s broad. Very broad. And in its broadness lies its weakness and its danger.
It is, in many ways, an English version of the Scottish Breach of the Peace offence, which is used for all manner of stuff that would not cause issues south of the border. One infamous case saw an individual who had been “having sex with a bicycle” (I kid you not) in his hotel bedroom found guilty – and placed on the sex offenders’ register – after two cleaning ladies burst in upon this essentially private, intimate moment with his two-wheeled friend and presumably being alarmed or distressed by the sight that met his eyes.
There is a big debate about the links between oppression and insult, which Zoe covers well. Debate too as to whether the splutterings of the political-correctness-gone-mad lobby are merely those of a privileged group upset at loss of privilege. That exists. It is definitely there.
The perils of secretive justice
But, too, there is something else…and it can be seen this week in the manner in which the Advertising Standards Authority has taken on the blogger, Archbishop Cranmer. For he, as one would expect of an essentially pro-christian religious blogger, joined the debate on same sex marriage by putting up an ad that allegedly caused offence to a number of folks…allegedly from a Jewish pro-Gay group.
The details I leave others to argue out. What is striking is two aspects of this issue. First, the very fact that an individual, albeit a blogger, but otherwise a private individual should receive correspondence from the ASA that asks them, inter alia, to keep the correspondence confidential.
Why? There is no judicial process involved. Those eventually ruling on the matter are not a jury in the legal sense, but appointed, allegedly expert judges. Surely they would not be swayed by public opinion. Or if they are,they shouldn’t be there at all.
Quite rightly – and embarrassingly for the ASA – the good Archbishop did exactly what he was asked not to and published all correspondence, including the request not to publish. The Mail are, as we speak, making hay with the story. Speaking to the ASA today, I get the impression, which of course they would neither confirm nor deny, thast they have spotted the flaw in their manner of working…and will be amending procedures in thenot too distant.
Meanwhile, in another neck of the woods, my daughter, who does not possess a television set, receives a letter from an exasperated TV Licensing Office. Headed “what to expect in court”Q it is a thoroughly intimidating missive, designed carefully to give the recipient the seriously impression of imminent court action, when the reality is anything but.
They have no right to demand an answer. They may not take her to court unless they have actual evidence of her possessing a TV. Yet they see fit to intimidate, using their position as a big state organisation to do so.
And back a few decades, to almost the last time I was arrested:a police officer placed me and my companion under arrest for all of, oh…half a minute…which was as long as it took for my copmpanion to inquire, quite jauntily, I thought: “certainly, officer: what charge?”
The big freeze
Because, you see, the issue here for me is twofold. Forget the niceties of the law: very often a law has effect not by what it says but by the impression it gives. If we are constantly warned that what we say may be sufficient cause for us to be arrested and taken down the cells, there is chilling effect.
Too, a law drawn as broadly as this one is open to institutional abuse. Because in the discourse between state and individual,there is a massive imbalance. Unless you really ARE sure of your grtound, would you happily, publically, stand up to the ASA, the TYV Licensers – or the police.
Nah. In the end, there is something here that needs addressing. But the problem with s5 is not that the intention is wrong – it isn’t – but that the execution, implanting a particular point of view directly into law, is overkill.
Time, methinks, for reform.