What’s so wrong with words?

Thane Rosenbaum’s book is part of a growing literature in the US, expressing doubts about that country’s free speech (“First Amendment”) tradition. Most of my readers come from the UK so it’s worth explaining what he’s against.

In as short as I can make this for Brits: the US Constitution was ratified in 1790. Eighteen month later, the First Amendment was added, as part of a group of amendments all protecting the individual from arbitrary government by protecting rights to jury trial, the right to silence, etc. The first amendment limits the legislature from curbing free expression, “Congress shall make no law … abridging the freedom of speech”. For more than a century after the amendment was ratified, judges ignored it. In the 1920s, judges invoked the first amendment, but in a canting, hypocritical way, eulogising its importance while criminalising all speech Socialists, Communists and radical trade unionists.

Since 1945, the First Amendment was extended beyond its original remit (“Congress shall…”) to include all parts of the government, and all private citizens in the US. All speech has required to be tolerated, even pornographers, fascists… Since about 1990, free speech has become a totem for the US right, a shield to protect everything they say, and a sword against their enemies. So, after the Trump coup of 6 January, the President defended himself from impeachment was by saying that it didn’t matter that he had incited his supporters to kill, to destroy property, or to sack Capitol Hill, the First Amendment makes all speech legal, irrespective of what comes from it.

Through the 39 chapters of his book, Rosenbaum gives his readers a series of reasons to doubt whether the First Amendment still does any good in protecting what most people would consider free speech.

His book begins in 2017 with Charlottesville, and the various neo-Nazis gathered there to chant “Jews will not replace us”. The idea behind that chant is the belief that every black person present in the US is merely by being alive, carrying out an act of violence against whites. And that Jews are the secret organisers behind the imagined mass murder of white people. These fantasies of anti-white violence are invoked, pretty obviously, to legitimise what fascists can tell themselves is pre-emptive and defensive violence on their party, murders such as the 2018 attack on the Tree of Life Synagogue in which 11 Jewish worshipers were killed.

Why, Rosenbaum asks, would anyone want to allow speech which is an incitement to murder? In reality, the First Amendment, is just one of several ways in which US law struggles to keep up with what every other affluent society has been doing for decades. No other country in the developed world permits this, any more than they tolerate the death penalty, or allow employers to go without paying maternity pay.

From there, Rosenbaum goes to other kinds of speech tolerated under the First Amendment, social media trolling, cyberbullying. Again, outside the US these are dealt with in the civil or criminal law as acts of “hate speech” (the US term) or “harassment” (as in the UK and Europe). Why does the US make itself the exception? “Other nations,” he writes, “managed to avoid the free speech madness”.

Rosenbaum responds to the argument that bad ideas die out when they are subjected to public discussion. To which, he asks, what happens if you are the individual who has to hear them, and you are in the middle of a riot?

From there, Rosenbaum pivots. He wants to be seen as a careful, balanced, person. Not an extremist, just someone worried about the excess of free speech. Therefore, there is a mandatory chapter insisting that as much as the right is a problem, there is also an issue of intolerant students. (He also has some pretty stomach-turning things to say about the rights of Palestinian to speak – or as Rosenbaum sees it, their obligation to be silent).

There is a lot wrong with this book. But it has its moments, too. Rosenbaum makes points which 90% of Americans don’t get to hear. That the First Amendment was only ever supposed to be a rule that bound governments, not individuals. That it is a right to speak, not an obligation to listen. That it does nothing to protect right-wing or far-right speakers, from the acts of people who will permit them to have a platform but are also intending to debate, to heckle, to subject them to slow handclapping.

That not every kind of spoken word is an idea.

That the much spoken-about free marketplace of ideas does not exist and could not meaningfully exist in a world dominated by the tech giants.

That the hearing of unpleasant words can cause physical harm, that stays in people’s bodies, that ruins their lives.

That the people who are on the receiving end of hate speech have a right to dignity and, at the very least, these two things need to be balanced.

Reading a book like this, as a socialist, or a European, or a practising lawyer, or someone who reads more than, I don’t know, one book every decade, you have to pinch yourself every two seconds and tell yourself: Let it go. You are not the audience for this book. It is not aimed at you. It is addressed at an imagined Middle American audience saturated with the assumptions of that media culture.

From that perspective this book is … ok. Ish. Kind of.

It doesn’t have the wide reading of a Jeremy Waldron, or the fizz of a P. E. Moskowitz, or the commitment of a Natasha Lennard or a Shane Burley or a Talia Lavin. But it’s a start.

On waking up in an authoritarian state

Be honest with yourself. When you saw the woman, her arms locked behind her back – you recognised her, didn’t you?

For she had been in Poland in winter 2020, when women asked only to control her own lives. And the journalist from the BBC was forced to acknowledge that the protests were illegal, and the police acting strictly within their rights. And to show that in Britain we had not fallen quite so far, the journalist let the emotion catch in his voice, even while he called the actions of the police a necessity.

And, for those who see further, where did the massacares at Rabaa in 2013 or in Khartoum in 2019 begin, or the scenes in New York or Portland the men and women who could not breathe, if not in the days and weeks before, with images like Clapham Common, reported, repeated, so familiar that you the viewer permit the small disgrace to pass, make yourself incapable of resisting the large?

We need to admit a truth that no politician has dared tell. That the actions of the police did not come unannounced, that they are not an aberration in own low, dishonest times. That a year without democracy has paved the way for them.

Crimes made on the whim of ministers, made law within days, changed to avoid a difficult question. The friends of those in power enriched. That man is a friend of government, nothing he does can break the law. This woman its enemy; the cells gape for her.

We have all slept too long.

The Right to Protest under Covid – what you can do

Most readers will, I suspect, have read the news that on Sunday Karen Reissmann was issued with a fixed penalty notice after organising a protest in Manchester against government plans to pay nurses a pay “rise” of just 1%.

Less than a year has passed since Boris Johnson was in hospital with Covid. On his release, he thanked the nurses who had watched over him. He credited them with saving his lives. He said, “It’s hard to find words to express my debt.” Well now what know what his words are: a 1% pay rise, and ten thousand pound penalty notice if you protest.

The list of protests which have been subject to arbitrary and unlawful policing is growing all the time. In Belfast, in summer 2020, a loyalist assembly to “protect monuments” was facilitated by the police to help it comply with Covid Regulations. In Derry, meanwhile, Black Lives Matter protesters were harassed, fined, and threatened with prosecution. Even the Police Ombudsman was obliged to characterise this behaviour as “unfair” and “differential treatment”. In Brighton, in February 2021, a protest in favour of the domestic support charity Rise, which had been stripped of a contract to assist local citizens, led to police officers approaching the perceived organiser, and threatening to fine her.

Here what I want to do is explain how protests can take place legally under Covid, and what to do if the police exceed their powers by serving a fixed penalty notice on you, or on a friend or fellow-protester.

Protesting in the present lockdown: You can’t. Well, possibly, you can’t. I’ll explain that possibly in a moment

The main Coronavirus regulations are now here. How lockdown has worked since January is, in effect, the whole country has been put in tier 4 (and the tier 4 rules were tightened). The rules of for tiers 1, 2 and 3 prevent people from gathering outside in groups of 6 or more. But they make an express exception for protests. Eg if you look at the tier 3 restrictions here, under para 4, exception 13, there is a rule allowing some people to protest.

The rules for tier 4 don’t have that exception. Therefore, on the face of them, all political protests have been banned – whoever does them, and under whatever form, for the duration of the lockdown.

Now this ban is almost certain “unlawful”, for the reason that it is an absolute ban. No protests are permitted under any circumstances at all (not even with facemasks, social distancing, etc). The European Convention on Human Rights protect people’s right of freedom of assembly, and while this is a relatively weak protection, it kicks in exactly at the moment when all protest is banned. In any event, the structure of the main regulations is such that they appear to make rights of protest a primary right. (They are structured into the main body of the SI, not its schedules, and are the only right given that primacy). This is only a lawyer’s educated guess, but it’s my best hunch that if someone was to judicially review the SI, or its use, say, by Manchester police, there’s about an 80% chance that any judge would agree – that the regulations should be read as if allowing protests, provided only that those protests were proportionately organised; i.e. involving, as Saturday’s did, relatively few people, socially distanced, with masks on, etc.

Some readers will be thinking – surely the law can’t be so uncertain that there is a genuine scope for doubt as to whether a law is unlawful. Actually, that happens from time to time, and one of the moments it happens more than ever is during a national emergency. As any number of legal theorists have pointed out, the whole purpose of a state of emergency is that the law becomes uncertain – these are the ideal conditions for more authoritarian forms of government to take root.

The first and most basic problem with the Covid anti-protest laws is that they were made as secondary legislation, this is in breach of a very long-held principle of UK law that it is the role of parliament and no ministers to make law. No controversial laws should be introduced through secondary legislation, and certainly no criminal offence. The practice has been heavily criticised by a Joint Committee of the House of Commons and House of Lords.

The legislation has also been arbitrarily applied. Two months into the Coronavirus Act, the Crown Prosecution Services carried out a survey of all 44 Magistrates Court prosecutions carried out by that date. It found that in every single instance to that date the Defendant had been wrongly charged.

In early 2021, the CPS again reviewed its use of the new powers to prosecute. Some 127 out of 1020 charges brought under the various coronavirus Regulations were withdrawn or quashed, worse still, every one of 232 charging decisions under the Coronavirus Act were found to have been wrongly brought.

In the Manchester case, it is clear that police did not know what they were doing. The journalists describe officers scrolled down their phone screens, desperately trying to work out what the law actually said.

So what can you do? The bad news about the fixed penalty notices is that there is no appeal mechanism. The good news is that, in contrast to a court order, there is no enforcement mechanism, or no direct one. If you fail to pay, you can’t be subject to bailiffs. The regulations define a fixed penalty notice as an “opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to an authority specified in the notice”.

You are perfectly entitled to say – I have had my “opportunity” and I decline to make use of it. What the police then have to do is pass the case to the CPS who then make a decision whether to prosecute. If you are a nurse involved in a protest against a 1% pay rise then you can be pretty confident that either a) the arguments I’ve set out above would succeed, in the magistrates or on appeal, or in any event b) that any fine will be in the hundreds not the tens of thousands of pounds.

Protesting in tier 1-3: You will be able to, but subject to various limits requiring organisers to carry out a risk assessment and socially distance.

All I need to say at the end of this piece is that none of what I’ve been describing here cuts against the health case for a lockdown. That is and was a necessary step towards saving lives. What I am criticising is rather the way constitutional power has seeped towards the executive, resulting in the expansion of the law and its use in an authoritarian manner. The kind of policing we are witnessing is all of a piece with the corruption shown by ministers in the lockdown, the interpretation of the criminal rules so as to protect advisers and ministers, etc.

On the eviction ban

Me, in last month’s New Law Journal, on the eviction ban, and the government’s delays in implementing its manifesto promise to abolish section 21.