The Staggers

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Condemning “managed anorexia”

What are the limits of free speech?

By David Allen Green Published 12 January 2011 14:43

Sarah Tonner has written a moving and measured piece on the Guardian's website about the issues of free speech and irresponsible promotion of anorexia. She argues that the harm that may be caused by such a campaign is such that it should be prohibited. She concludes of the person behind the campaign:

If [the] tweets risk encouraging anorexia and causing harm, this should be addressed. By exercising his "liberty" to say whatever he likes, he risks infringing the liberties of others who read his words – those with a mental illness who have no control over the effect his words might have on their minds.

However, as Sarah is the girlfriend of Paul Chambers, the defendant in the Twitter Joke Trial, the question has been raised whether it is consistent to support free expression in his case, but not in the case of a vile (and thankfully now ended) Twitter campaign.

No sensible person believes free speech is an absolute right. If it was, obtaining goods and services by deception could not be an offence. Providing a false invoice is not a "speech act" that should be accorded the protection of human rights law. Nor is blackmail or conspiracy to murder.

Nor is a bomb hoax. Such actions are rightly prohibited by the Criminal Law Act 1977, the law in respect of which Paul was initially arrested. However, the police and the Crown Prosecution Service quickly realised that there was no evidential basis for charging Paul under that offence. It was not what he had actually done. It is the fact that the CPS decided to prosecute Paul anyway, and chose the obscure and vague Section 127 of the Communications Act to do so, that causes significant concern from the perspective of free expression.

Free expression is a qualified right, but the presumption must always be in favour of it. Any interference with it must be proportionate and exact. And the prohibition must always be in the wider public interest.

Was the "managed anorexia" campaign the health equivalent of a bomb hoax, which would be rightly prosecuted under the Criminal Law Act? If so, the same principles would apply: there are words that can do damage, and in respect of which there should be a prohibition. Indeed, the promotion of health products is a tightly regulated area for this reason.

Or was the "managed anorexia" campaign a speech act that should have the unconditional protection of the right to free expression?

Views will differ on these questions. However, if a "managed anorexia" campaign is indeed more akin to an actual bomb hoax than to a jokey tweet, then it is perfectly open to condemn one, and to defend the right to send the other.

I suspect there is not a single supporter of the Twitter Joke Trial who also believes that there should be no prohibitions on promoting dangerous health practices. The problem is where to draw the line. But it is not hypocritical to believe that there is a line to be drawn.

David Allen Green is legal correspondent of the New Statesman. He is also solicitor for Paul Chambers.

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14 comments

Thu, 2011-01-13 01:29 — Kimpatsu (not verified)

If Tong's right to spew his vile crap is infringed on the grounds that vulnerable people might take him seriously, what of John Hinkley Jr, who shot Ronald Reagan because of Taxi Driver? Shall we now ban de Nero films?
As to the idea that false invoices should be protected if you allow free speech free rein, this is a false equivalence. Vile though Tong's assertions might be, what is his mens rea? Does he really intend to goad vulnerable people into self-harm, or is he just being an attention-seeking jerk? (Unlike the false invoice, which is not a free speech issue, as the intention is to deceive.)
This is the difference between me and JofK; he looks at the law as it is; I look at the law as it should be, and insist that those with power (I am not one) make the changes where necessary. But then, I have the luxury of flights of fancy, where a Daphne Powell sits in every courtroom. Because I am a nerd.

Wed, 2011-01-12 15:22 — Ant (not verified)

As foul as Tong's comments were (and whether or not they were a hoax), I don't really see how you could legislate against them. They weren't false medical claims (apart from perhaps his 'Size Zero Pill), just a very unpleasant opinion: that you can 'manage anorexia' and that if you do you'll be beautiful.

Wed, 2011-01-12 14:59 — Adam (not verified)

Er, are you sure about that? You say "She argues that the harm which may be caused by such a campaign was such that it should be prohibited"

I didn't see anywhere in that article that she Tonner said it should be prohibited. She called it irresponsible, and I think all sensible people would agree with her, but that's not the same thing as saying it should be prohibited.

Wed, 2011-01-12 15:13 — Jared Evans (not verified)

A bomb threat from a civilian is something to be taken seriously. I don't agree with what's happening to Paul Chambers but I also don't agree with the hoo har that is surrounding this Kenneth Tong person.

He hasn't proclaimed to be a Dr, so taking advice from him on anything is akin to taking advice from your gambling addicted best friend on which horse to stake your house on at the grand national.

As with anything you read on twitter you should exercise caution. I do wonder why this guy has been picked up and is being picked on. I'm sure if you browse through twitter you'd find people with more extreme views. Can I expect a hated twitterer of the month every month in the papers?

Wed, 2011-01-12 15:15 — Sarah Tonner (not verified)

Adam,
I do believe that Tong shouldn't be allowed to conduct such a public campaign which causes harm to vulnerable people, and indeed was designed to do so. I've said it on twitter before.

Wed, 2011-01-12 15:28 — Kate Dorman (not verified)

I'm not sure we need to prohibit when free speech has effectively shut this sicko up. He's espouses his views and we can all use reason to ridicule everything he says. Job done? Whilst I'd really rather he didn't circulate this crap, I know my own daughter is rationale enough to recognise it for what it is. Ok so there are more vulnerable women out there but surely they have been let down by their families and the state in general so we need to address that rather than Prick Tong.
Just a point of view & open to difference of opinion of course

Wed, 2011-01-12 16:01 — Richard (not verified)

As Kate Dorman just pointed out, it's more speech that has put an end to this problem, not less. Tong was called out, ridiculed and exposed by the community of which he was a member, not least by Tonner and Green.

Would prohibition, aka censorship, have been so effective?

Wed, 2011-01-12 16:08 — 1nothingspecial (not verified)

I suppose the positve to come out of all of this, and a victory for free speech, is this:

When a pillock like tong comes along, we all have the free speech to call him out for the pillock that he is!

Wed, 2011-01-12 16:40 — Adam (not verified)

Thanks for clearing that up, Sarah. Wasn't entirely clear from your Guardian article whether you were just pointing out that Tong had abused his right to free speech or arguing that his right should not extend that far in the first place.

I disagree with you there: I think that reprehensible as Tong's comments were, they probably don't cross the line into the area where other concerns trump free speech. To me, free speech is not absolute, but you need to have a pretty damn good reason to curb someone's speech, and I don't think Tong quite got that far, although I admit he was close.

However, I'm certainly not going to accuse you of hypocrisy: I can see that the reasons why you think Tong should be made to shut up are completely different to the issues in the Twitter Joke Trial.

Wed, 2011-01-12 16:42 — cripesonfriday (not verified)

"The problem is where to draw the line. But it is not hypocritical to believe that there is a line to be drawn."

The other problem is who draws this line, I certainly don't want that line to be drawn by a Twitter mob baying for blood.
Once the line has been drawn it makes it a lot easier to redraw it whenever enough noise is made, when enough people become "outraged".

Tong didn't violate Twitter T&C, and I doubt he will be charged with breaking a law. He was rounded upon on Twitter and in the media and has been forced into a retraction of his tweets.
This will blow over and he will become "Kenneth Tong, the man behind the infamous Size Zero Pill Hoax" rather than "former Big Brother contestant Kenneth Tong"
The world will move on unconcerned, and Twitter will wait for the next person to attack, or defend, en masse.

Sun, 2011-01-16 20:00 — Rolo Tamasi

Is the New Statesman really promoting the argument that free speech should be curtailed to protect some general groups of vulnerable people?

Is that not the end of free speech?

There is no significant issue upon which I would like to be free to form my own opinion that does not involve a matter someone might consider was capable of misinterpretation or misjudgement by the “vulnerable”.

Wed, 2011-01-12 17:43 — Bob (not verified)

Johann Hari's published a stunning interview with Tong, which appears to have directly led Tong to claim it was all a hoax: http://johannhari.com/

Wed, 2011-01-12 20:22 — Steve (not verified)

Is this hypothetical mentally ill girl who stumbles upon Kenneth Tong's twitter any relation to the hypothetical elderly couple reading Paul Chamber's?

Anyway what was your argument again? Something about hypocrisy?

Sat, 2011-01-15 21:28 — Lloyd Jenkins (not verified)

Kimpatsu- Following your mens rea logic, a perjurer who perjured themselves to gain attention would be protected by freedom of speech. I'm not sure that makes sense: the person whose trial was affected would still suffer damage to their right to a fair trial.

That anorexics might be harmed by Tong's speech is a reasonably forseeable consequence of his actions (the same cannot be said of Taxi Driver). That's why censorship is justified in that case. His right to free speech can have adverse affects on others' right to health/life. As his tweets of little/no political value, the right to life/health of anorexics must prevail.

Your JoK comment is also a bit harsh in light of his blogging on defamation/McKinnon.