Condemning “managed anorexia”

What are the limits of free speech?

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.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The allegations of abuse in sport are serious – but we must guard against hysteria

This week in the media, from Castro and the student rebels, hysteria over football coaches, and Ed Balls’s ballroom exit.

From the left’s point of view, the best that can be said of Fidel Castro, who has died at 90, is that – to echo Franklin D Roosevelt on the Nicaraguan dictator Anatasio Somoza – he may have been a son of a bitch but he was our son of a bitch. Denying Castro’s dreadful record on human rights is pointless. According to the highest estimates – which include those who perished while trying to flee the regime – the death toll during Castro’s 49 years in charge was roughly 70,000. His immediate predecessor, Fulgencio Batista, whom Castro overthrew, murdered, again according to the highest estimates, 20,000 but he ruled for a mere seven years. For both men, you can find considerably lower figures, sometimes in the hundreds. It depends on the politics of the estimator, which shows the absurdity of such reckoning.

 

Murder is murder

What is certain is that Batista ran a corrupt regime with close links to the American Mafia and presided over outrageous inequalities. Even President Kennedy, who ­approved a failed military invasion of Cuba in 1960, said that, on Batista’s record, “I am in agreement with the first Cuban revolutionaries”. Castro, on the other hand, created a far more equal society where illiteracy was almost wiped out, and free health care brought life expectancy up to levels comparable to those in the US and western Europe. You could say that the numbers saved from early deaths by Cuban medicine under Castro easily exceeded the numbers that faced firing squads.

But nothing excuses torture, murder and political imprisonment. There isn’t a celestial balance sheet that weighs atrocities against either the freedoms from ignorance and disease that the left favours or the freedoms to make money and hold private property that the right prefers. We should argue, as people always will, about which freedoms matter most. We should be united in condemning large-scale state brutality whatever its source.

 

Spirit of ʼ68

Though his regime became an ally (or, more precisely, a client) of the Soviet Union, Castro wasn’t a communist and he didn’t lead a communist uprising. This point is crucial to understanding his attraction to the mostly middle-class student rebels in Europe and America who became known as the ’68ers.

To them, communist rulers in eastern European were as uninspiring as the cautious centrists who hogged power in Western democracies. They were all grey men in suits. Castro had led a guerrilla army and wore battle fatigues. As the French writer Régis Debray explained in Revolution in the Revolution? – a book revered among the students – Castro’s band of revolutionaries didn’t start with a political programme; they developed one during “the struggle”. Their ideology grew organically in the mountains of Cuba’s Sierra Maestra.

This do-it-yourself approach seemed liberating to idealistic young people who didn’t want to bother with the tedious mechanics of bourgeois democracy or the dreary texts of Marxism-Leninism. They had permission for “direct action” whenever they felt like it without needing to ­formulate aims and objectives. They couldn’t, unfortunately, see their way to forming a guerrilla army in the Scottish Highlands or the Brecon Beacons but they could occupy a university refectory or two in Colchester or Coventry.

 

Caution over coaches

Commenting on Radio 5 Live on the case of Barry Bennell, the Crewe Alexandra coach convicted in 1998 of sexual offences against boys aged nine to 15 (the case came to fresh attention because several former professional football players went public about the abuse), an academic said that 5 per cent of boys reported being sexually abused in sport. “That’s one boy on every football pitch, every cricket pitch, every rugby pitch in the country,” he added.

This is precisely the kind of statement that turns perfectly reasonable concerns about inadequate vigilance into public hysteria. The figure comes from an online survey carried out in 2011 by the University of Edinburgh for the NSPCC. The sample of 6,000 was self-selected from emails to 250,000 students aged 18 to 22, who were asked about their experiences of physical, emotional and sexual harm in sport while aged 16 or under. “We do not make claims for the representativeness of our sample,” the researchers state.

Even if 5 per cent is accurate, the suggestion that abusers stalk every playing field in the land is preposterous. After the Jimmy Savile revelations, just about every DJ from the 1960s and 1970s fell under suspicion – along with other prominent figures, including ex-PMs – and some were wrongly arrested. Let’s hope something similar doesn’t happen to football coaches.

 

Shut up, Tony

Brexit “can be stopped”, Tony Blair told this magazine last week. No doubt it can, but I do wish Blair and other prominent Remain supporters would shut up about it. The Brexiteers have spent 20 years presenting themselves as victims of an elite conspiracy to silence them. Committed to this image, they cannot now behave with the grace usually expected of winners. Rather, they must behave as though convinced that the prize will shortly be snatched from them, and treat any statement from Remainers, no matter how innocuous, with suspicion and resentment. Given enough rope, they will, one can reasonably hope, eventually hang themselves.

 

Strictly Balls

Perhaps, however, Nigel Farage et al are justified in their paranoia. As I observed here last week, the viewers of Strictly Come Dancing, in the spirit of voters who backed Brexit and Donald Trump, struck more blows against elite experts by keeping Ed Balls in the competition even after judges gave him abysmal ratings. Now it is all over. The BBC contrived a “dance-off” in which only the judges’ votes counted. 

Peter Wilby was editor of the Independent on Sunday from 1995 to 1996 and of the New Statesman from 1998 to 2005. He writes the weekly First Thoughts column for the NS.

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage