Speaking for someone’s right to put up a meme that makes light of Down’s Syndrome is an unenviable job. They say that if you want to be funny punch up, not down. Mock those more powerful than you and you’ll get a laugh out of us. Mock the less powerful and nobody, apart from idiots like you, is laughing.
You could argue that a meme mocking Down’s Syndrome amounts to hate speech because it identifies a group of people for collective insult. You could call people with Down’s Syndrome a vulnerable group.
But the case brought yesterday against an idiot called Luke Mihalic failed to prove he broke hate speech laws because when he uploaded the ‘joke’ hate speech laws weren’t in place yet. So please don’t judge the punishment he got by a law he couldn’t have broken because it didn’t exist when we committed the crime. After all, it’s a scary prospect indeed if we find ourselves punished by laws invented after the fact.
Instead of the hate speech laws he could not be convicted under, he was convicted under ‘computer misuse’ laws and fined €10,000.
What’s my problem with this?
If the state is going to punish someone for saying something, the state should have the courage to use laws that explicitly restrict free speech. Free speech is a right and if that right is going to be clipped the state should have and show they have very explicit reasons why they are justified to do so.
For example, though I should enjoy free speech, I should not be free to deny the Holocaust happened. There should be a law that defines the denial of the Holocaust as a crime. That law would be justified by the fact that the best way to prevent another Holocaust is to make sure everyone remembers the first one, and conversely, forgetting the Holocaust is the surest way to get another one inflicted. Free speech is important but not important enough to risk another Holocaust, where even more fundamental rights are grossly flouted.
On a perhaps less obvious scale this is what justifies laws against hate speech. If we dehumanise black people, for example, or Muslims, or women, or poor people, or any group that is vulnerable to such acts, we don’t merely offend them. Offence is neither here nor there. Preventing hate speech is necessary because from speech comes violence. The Holocaust would not have been possible without years of spoken prejudice of the Jews and of the other groups that were killed by it.
I can see why persons with disability could be collectively hurt in such a way. And I can see why it should be prevented. I can see why we should have carefully written laws and processes that might draw up limits to free speech without harming the enjoyment of free speech by everyone in the community who does not weaponize it to hurt people they hate.
The operative word here is carefully.
This idiot with a sense of humour that would have elicited laughs after a bout of heavy drinking at a Munich beer hall circa 1937, was slapped with a €10,000 fine under ‘computer misuse’ laws. Specifically, he was convicted under the Electronic Communications (Regulations) Act which says that if you make “any improper use of … an electronic communications network or apparatus” you can be fined up to €25,000.
Now that’s bloody vague, isn’t it?
A guy who joked, poorly and hurtfully, about Down’s Syndrome got fined €10,000. Given how distasteful this was, we might feel good about the slap he got. But is it “improper use of an electronic communications network” if I write “Fuck Robert Abela because he’s a smelly cunt”. It’s offensive, unjustified, maybe a little cruel. Is it a crime though? Is the clip from Family Guy I’m linking here a crime? Is it important enough for society that I am not allowed to say that or to link this, that everyone’s free speech is limited to the extent that it would prevent everyone from saying or linking it
Because you see, the law that was used to punish the guy who mocked persons with disability is there to draw vague limits around everybody’s speech, not just his. That’s what is meant by the notion of chilling effect. We all must be careful not to say something that some policeman and some magistrate might consider computer misuse. There are no guidelines to define what that “improper use” amounts to. It’s up to them to decide what use they do not approve of.
With hate speech laws the definitions are clear: hurting members of a vulnerable group for being members of a vulnerable group. But this law can be used for anything. And here’s the bad news, it can be used against anyone.