Freedom of Speech in the World the Internet has Made

BBC News reported a significant turnout by major figures in British comedy at a benefit to raise money to assist Paul Chambers with his legal expenses.  For those on this side of the pond unfamiliar with the name, Chambers is the frustrated traveler who, upon discovering that his airport was closed due to snow, vented his anger through the following tweet:

Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!

In a culture that now lives in fear of terrorists, he was prosecuted for sending a menacing communication, found guilty, fined £385, and told to pay £600 costs.  He has appealed the verdict, which he why he needs help with his legal expenses.

The guests of honor at the benefit held to the position that the tweet was never more than a joke.  Addressing the benefit audience, Chamber’s lawyer said:

We should be able to have banter.  We should be able to speak freely without the threat of legal coercion.

The United States has had more than its fair share of freedom-of-speech cases.  Indeed, there have been enough to fill a book;  and Anthony Lewis wrote that book, giving it the title Freedom for the Thought That We Hate.  However, of all the judicial decisions issued over First Amendment rights, the most memorable will always be Oliver Wendell Holmes’ proposition that freedom of speech does not grant the right to shout “Fire!” in a crowded place when there is no fire.

Much as I respect the spirit behind this benefit, I would submit that the Holmes decision still stands as a valuable guideline.  I believe it is relevant because, whatever else we may say about it, the Internet has become a very crowded place.  A decade ago we fretted over a miniscule amount of information triggering automatic trading software and sending the markets into a tailspin.  Ultimately, that was an objective problem that could be reduced to mathematical models.  The complexity of the Internet as a social space cannot be so simply reduced (however hard the online marketing folks may try to do so);  and its dynamics are far less predictable that those of an audience filling every seat in a theater.

Indeed, the dynamics are so complex that the simple question of whether the text of a tweet can be classified as a joke or a terrorist threat is just not a well-defined one.  It is not only that the text cannot be classified by a context-free method;  it is also that it will be read by many readers, each endowed with a different context.  Thus, in the absence of any sound approach to evaluating the incriminating text, the court chose to rule on the side of caution.  Ultimately, the ruling had more to do with the social climate of fear than with the content of the text.

Do I agree with this ruling?  Before I answer this I feel it appropriate to state a bit of my own context that I feel is relevant.  I was living in Singapore when the American teenager Michael Fay was arrested, tried, and convicted for theft and vandalism there.  His sentence included four strokes of the cane, making this the first time that an American citizen had been sentenced to caning.  This happened in 1994, which, in the grander scheme of things, was after Singapore had made its first venture into cable, meaning that I could get my news from both Singapore Broadcasting and CNN;  so I had a good sense of how the American media chose to inflate this story.  I also had a personal sense of what it meant to be an American expatriate in Singapore.

My own opinion of the Fay case was that anyone who lives in another country is obliged to understand enough about the culture of that country to anticipate the consequences of any action within that culture.  Actually, that obligation holds as much in one’s native country as in any other.  We just take it for granted that we understand our own culture, but I would argue that this is a specious assumption.  Indeed, the weakness of that assumption provides a reason for why Holmes’ issued the decision he did;  and we may treat that decision as a corollary of this general “law of culture and consequences.”

Both Fay and Chambers chose to ignore that cultural law.  Fay had to take the consequences of his decisions regarding both his specific criminal act and his lack of cultural awareness.  It is all very well for Chambers’ lawyer to argue that we should be able to banter;  but, between the “crowded conditions” of the Internet and the climate of fear that has become global in scope, we cannot do so casually.  The consequences of what we say are not what they used to be.