What’s the difference between “offensive” and “grossly offensive”? Is it, as is said of the erotica versus pornography, the difference between using a feather and using a whole chicken?
Last week in Belfast, it was left to District Judge Liam McNally to decide whether a solitary quill or an entire bird had been deployed by an Evangelical preacher who, in May 2014, told his congregation that Islam was a “Satanic” doctrine and that he did not trust Muslims.
Pastor James McConnell’s sermon caused considerable controversy, which escalated when he appeared on the BBC’s Stephen Nolan show and refused to back down. Then-first-minister Peter Robinson, of the Democratic Unionist Party, attempted to pour oil on troubled water by saying he wouldn’t trust a Muslim on the big issues, but he’d happily send one down to the shops for him.
Anyway, more than a year later, in June 2015, prosecutors charged McConnell not, as one might imagine, with incitement to religious hatred, but with causing the sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
That is Section 127 of the Communications Act, a law which, as has been pointed out here and elsewhere many times before, was designed to prosecute heavy breathers harassing telephone operators in the 1930s. It was not ever supposed to be used against fire and brimstone preachers in Northern Irish megachurches. At the time, this column questioned the Public Prosecution Service’s use of this instrument. The PPS must have thought this was the best means of securing a conviction, but it is odd that an online stream of a sermon should be singled out as a grossly offensive message, and a rather dangerous precedent for broadcasters, news publications, bloggers and, as we have seen many times before, social media users. If a recording of a sermon available on the web is liable to prosecution under the Communications Act, why not, say, a newspaper column, or even a documentary in which “offensive” views are aired?
As it turned out, McConnell was found not guilty by Judge McNally last week, on the basis that the judge was unwilling to attach the “grossly” description that turns being offensive into an offence. In a judgment, which hinted at irritation with all parties, McNally made it clear that yes, the pastor’s statements were offensive, and that offence could have been avoided:
“He is a man with strong, passionate and sincerely held beliefs,” the judge found. “In my view, Pastor McConnell’s mindset was that he was preaching to the converted in the form of his own congregation and like-minded people who were listening to his service rather than preaching to the worldwide internet. His passion and enthusiasm for his subject caused him to, so to speak, “lose the run of himself”. Having said that, I am satisfied that … he must have realised that there was a risk of offence being caused and, unfortunately, ignored it.”
He also hinted that McConnell was ignorant about Islam — that he did not demonstrate any theological justifications for his views on the religion.
But McNally’s conclusion raised a question over why the case had come up: “The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive. It is not the task of the criminal law to censor offensive utterances. Accordingly I find Pastor McConnell not guilty of both charges.”
This is a fine and cheering judgment in an age when we could reasonably have expected it to have gone the other way. McNally has grasped, one can see, that the state has no place interfering in free expression of thought and belief, barring perhaps the prevention of imminent violence.
In the same week as this little triumph for free speech, we marked the first anniversary of the Paris attacks on Charlie Hebdo and a kosher supermarket.
One braced for repeats of the equivocation that followed the murders last year, and sure enough, Professor Nigel Biggar of Oxford University obliged, writing of the slain Charlie staff in the Times that: “Even if we have a legal right to spit on other people’s sacred cows for the sheer, malicious fun of it, we have no moral permission.”
What’s fascinating about Biggar’s vicarish utterances (he does at least concede “Charlie’s journalists certainly didn’t deserve to die”, which is good of him) is the idea that someone is, or should be, in a position to grant permission to others regarding what they can or cannot say, write, or draw. The men who carried out the slaughter at Charlie Hebdo certainly believed they should decide who is allowed say what: one suspects in their own way, the likes of Nigel Biggar’s do too.
It’s this authoritarian impulse, whether carried out with weapons, secular laws or smug religious entitlement, that should be confronted. A recent Irish Times editorial addressing the issue of offence and the McConnell case, expressed this sentiment well, stating that ultimately it is the reader who decides “how civilised debate will be conducted. Not the courts, regulators, overzealous prosecutors, politically-correct civil society groups, or even over-prescriptive press councils”.
It is to his credit Judge McNally understood this as he let the unpleasant Pastor McConnell walk free. We should carry his lesson with us into 2016.
No, wait, don’t. He’s heavyweight champion of the world and doesn’t seem particularly bothered what you or I think. He was born to box and is now at the top of his game, even if it is a game that has become less and less interesting, compelling and competitive in the last two decades.
Anyone who watched Fury beat Wladimir Klitschko on 28 November will struggle to remember anything about the fight. My word it was dull. Heavyweight boxing can be lumbering at the best of times, but this was beyond pedestrian. “Attritional” suggests a ferocity of combat that was entirely absent.
Nonetheless, Fury won, fairly and squarely. His uncle/trainer Peter Fury laughably compared the underdog victory to Muhammad Ali’s victory over Sonny Liston in 1964, proving, if nothing else, that boxing’s reference points are remarkably limited.
As a British world heavyweight champion, it is only to be expected that Fury should be nominated for the BBC’s Sports Personality of the Year Award. The problem is that Fury’s personality, or more exactly his opinions, ain’t exactly national hero standard. Fury claims that the apparent triumvirate of homosexuality, paedophilia and abortion will lead to the imminent apocalypse. This information, he says, is written in the Bible (where, exactly, remains unclear).
He also says the place of a woman is in the kitchen and on her back. He has offended many by suggesting that genuine national sporting hero, Jessica Ennis Hill, “looks fit in a dress”. This is obviously true in all senses but is the exact kind of objectification that has demeaned women’s sports for years, from Sepp Blatter’s suggestion that women footballers should wear tighter shorts to the annual drooling over women at Wimbledon.
Fury has faced criticism for all these views and come out, well, fighting. He has described the tens of thousands who have signed a petition calling for him to be dropped from Sports Personality of the Year as “wankers” and said his rivals in the competition have no personality to speak of.
This last comment reveals how the BBC is hoist by its own petard. Sports Personality Of The Year is a curious competition: the demands that the British public make of sportspeople make the Vatican’s canonisation processes seem a doddle. For years, Andy Murray, the greatest male tennis player the UK has produced since the 1930s, was criticised for not smiling enough. Sportspeople are simultaneously criticised for being pampered children and for speaking their minds. SPOTY’s name suggests it rewards not only accomplishment but also character. British sport and the BBC still retain the Corinthian ideals of the public school playing fields.
But in spite of the best efforts of Michael Gove while he was education secretary, character and personality mean different things now. Think of everyone you’ve ever met who has been described as a “character” or a “real personality”. Think of every person you’ve met who defends their crass emissions with the phrase “I’m a really honest person”.
Tyson Fury is all those people times one hundred and with fists the size of sledgehammers. He’s Dapper Laughs with a world title. This for him is character and personality.
Peter Fury’s post-fight allusion to Muhammad Ali was entirely deliberate but entirely wrong. When some people see Ali, they see a loudmouth being praised for being a loudmouth. Loudmouths have been part of boxing for a long time, with fight build ups frequently resembling melodramatic soap operas.
Ali was certainly a loudmouth, but he was also a sharp mind and a supremely talented boxer: he could back up the patter. Moreover, his schtick was tied to a new, confident assertion of black identity during the civil rights movement.
This is the small tragedy of Tyson Fury: the self-styled “Gipsy King” is a member of the last minority on these islands who have no one to speak for them. He is the product of a settled Traveller family. In a world where the best this community can expect in mainstream representation is the prurient gawping of Channel 4’s “My Big Fat Gipsy Wedding”, it would be nice for Travellers to have a positive role model. Speaking on Radio 5 Live, Josie O’Driscoll, a volunteer with the Traveller Movement, suggested that if Fury wants to be King of the Travellers then he should “get down off his throne” and talk to LGBT Travellers.
In an ideal world, maybe: but this carries its own problems. In the civil rights era of Ali, this was addressed with reference to Sidney Poitier’s character in Guess Who’s Coming to Dinner, the story of a white middle-class girl bringing her African-American boyfriend to meet her conservative parents. Poitier’s character was perfect: charming, professional, erudite, intelligent… inadvertently, and through no fault of Poitier’s, the message was that if a black man in a white society was in every other sense unobjectionable, then he might be accepted. The rise of the raucous, sexy, gun-toting ghetto heroes of the Blaxploitation era was in part a reaction to the rigidity of the upright, virtuous black characters in well-meaning films of the early 60s, cast as an unapologetic blackness.
So is it entirely fair on anyone to force Fury into the position of role model, whether for the Traveller community or the British people at large? It doesn’t seem to be a position he embraces himself. Far from it, he clearly sees his uglier views as part of his schtick. As with Katie Hopkins, or Donald Trump, there’s only so far the “controversial” routine can take you.
Sports fans play our part in encouraging the drama, the schtick, the anger and the rage, and boxing fans more than most. Only the most ferocious dullard would demand that sports coverage and sports talk should be confined to what happens on the pitch or in the ring. But sports fans are also essentially fickle: we enjoy the controversy until we don’t. And then we take our ball home.
This is the essential dilemma at the heart of our obsession with sport: we imagine sporting endeavour as something sublime, and imagine that the gifted athlete must also be pure in thought and deed. We may need to grow up and stop searching for heroes, but try telling the ancient Greeks that. We’ve had thousands of years to get over that particular need and show no signs of doing so. But we could, at least, learn that we won’t make boxing, Tyson Fury or the lives of LGBT people any better by insisting the heavyweight be silenced.
I still laugh every time I think of the funniest thing I’ve ever said, even though it was about 18 years ago.
Trouble is, I can’t tell you what it was. It was in rather poor taste. It was of such you-had-to-be-there nature that there would be literally no point in repeating it, then explaining it, then justifying it, then eventually apologising because you know, honestly, you’re right, it was in poor taste.
It was still funny though.
Jokes are unbelievably precious things, which is why they’re taken so seriously. Aside from actual touching, the most intimate unguarded moments we have with people tend to involve laughter.
Which is what makes the whole idea of comedy kind of odd. We pay professionals to provide us with our moments of joy, of sheer unthinkingness.
But for all the rapture of laughter, jokes are also extremely complicated, and mired in context. Like music, there comes the inevitable point where one decides that what one thinks is funny is funny, and what isn’t isn’t. What isn’t, is usually what comes after one’s own peak of interest.
So, everyone knows that the first nine or ten series of the Simpsons were solid comedy gold.
By everyone, I mean, for the most part, males between 32 and 45, who can easily bond over Simpsons quotes at otherwise awkward parties.
For many, Seinfeld performs the same function, an infinite mine of references and in-jokes. It’s a show I came to a bit late, and I can sometimes shout “No soup for you” and get a laugh, but my heart’s not quite in it in the same way as when I make the Sideshow-Bob-stepping-on-a-rake noise.
Still, Jerry Seinfeld is part of my comedy world, his comedy part of a particular golden age of 90s US sitcom that as well as the Simpsons and Seinfeld, spawned Friends and Frasier (less cultishly adored, perhaps, but very successful) and a host of less impressive impersonations.
Jerry Seinfeld, in comedy terms, is still important.
So it was of note when he recently told a US chat show that “PC” culture made him wary of playing university campuses.
Seinfeld gave the example of a joke about people’s obsession with staring at their smartphones: “They don’t seem very important, the way you scroll through (your phone) like a gay French king.”
The comic suggested that he could feel the audience’s nervousness about the deployment of the word “gay” in the gag. “[C]omedy is where you can feel an opinion. And they thought, ‘What do you mean gay? What are you talking about gay? What are you doing? What do you mean?’”
I feel some sympathy with Seinfeld here. We all know the feeling when a line we thought was perfectly good just drops, clangingly, to the floor and then through it, to hell: the feeling must be magnified a thousand times when you are used to getting laughs, and when getting laughs is what you do for a living.
But honestly, I also kind of feel for the crowd. Jokes about people staring at their phones do not really constitute cutting-edge humour in 2015. In fact, Seinfeld’s joke provokes approximately the same melancholy as the phrase “Brand new Simpsons” (“Homer has an argument with FKA Twigs on Twitter! This is going to be brilliant!”), turning us all into Comic Book Guy (“Worst. Topical reference. Ever.”)
But is Seinfeld entirely wrong? There is probably some truth in the idea that so-called “social justice activists” are a little too keen on policing speech, and not massively enthusiastic on the mildly transgressive nature of comedy of the type Seinfeld deals in.
There is also the more basic point that people are more forgiving of people they like. It’s possible that, say, the universally-adored Amy Poehler could have made the same joke and got a different response. But then, would she have made the same joke? Unlikely. Much like his PC complaint, it has a bit of an Old Man Yells At Cloud feel about it (See? Simpsons references are great).
Every so often (roughly generationally) there are upheavals in mores and language. We’re on that cusp now. When I was younger, the battle was to stop people saying words like “coloured” (and much, much, worse) and move on to “black”. Now, we’re moving towards “People of Colour” [POC]. This isn’t a tearful lament for the good old days when “gay” meant “carefree” and no one really thought about who Larry Grayson slept with. I retain just enough self-awareness to avoid that. And besides, it’s a ridiculous lie. No one tuning into the BBC’s Round The Horne in the 1960s, for example, was under any illusion about Polari-spouting Julian and Sandy’s references and double entendre. Much of the delight for many listening was a glimpse into the previously closed (criminalised) world of gay subculture, recently brought into the light in the debates following the Wolfenden report, which had recommended a relaxing of anti-gay laws.
The problem that the likes of Seinfeld and me, a bit, have is that we resent the implication we’re wrong when we think we are, at very worst, out of step. We (I’m sure Jerry won’t mind me speaking for him here), believe we’re pretty much good people. And people should know we’re good people. Jerry Seinfeld is sure people should know he’s not homophobic, so is a bit freaked out when people get uncomfortable with him using certain words in certain contexts. But not everyone does know him, and not everyone is totally on board. Is their disapproval censorious?
Probably a bit, yes. In the same way yours would be if I told you the funniest thing I’d ever said. And, I suspect, as I would be if you told me about the things you and your closest friends laughed longest and loudest about. Funny is about how and when and who with. Comedy is all about…timing.
It’s hard not to feel sorry for Abu Haleema. The poor man can’t catch a break. All he wants to do is establish a global caliphate under the harshest possible interpretation of sharia — a caliphate in which, he hopes, he will play a significant role — and yet he is thwarted at every turn.
First the authorities stop him from travelling to Syria to join the Islamic State. And then, to add insult to injury, they take away his internet, like he’s a naughty teenager. It’s a hard knock life for Abu.
And it’s about to get even harder. In the Queen’s Speech, the government announced a new counter-extremism bill which, will essentially make the existences of Abu Haleema and people like him illegal, without actually making them illegal.
How does that work? To quote the BBC: “The legislation will also propose the introduction of banning orders for extremist organisations who use hate speech in public places, but whose activities fall short of proscription.”
This, in essence, is a thought ASBO, a convenient way of stamping out “extremism” without making any serious attempt to test that behaviour against any kind of proper harm principle.
Whether we like it or not, we do have laws on hate speech and incitement to violence in the United Kingdom. We also have the powers to proscribe terrorist organisations.
But these powers are apparently not enough: and so we must create semi-legal sub-strata of behaviour where people can be censored on the basis of us not liking what they say very much.
This is not some plea for accommodation of the views of Abu Haleema and his friends. Let us be very clear here: these are views which are entirely antithetical to the secular liberal democracy we aspire to be.
But that fact is exactly the test of a secular liberal democracy: if we are to imagine free speech as a defining value of democracy (as David Cameron has said he does) then we cannot just choose which free speech we will defend and which we will not (as David Cameron has said he wants to). As commentator Jamie Bartlett has pointed out, free speech is not something that one pledges allegiance to in the abstract while stifling in the practice.
Predictably, we now turn to the life and times of George Orwell for a lesson from history.
In early 1945, a small group of London anarchists found themselves facing prosecution for undermining the war effort — specifically the charge of “causing disaffection among the troops”. Their crime was to criticise basic training, and to suggest that Belgian resistance movements should not hand over weapons to their Allied liberators, but instead retain their arms and set about building workers’ militias which would form a revolutionary force in post-Nazi Europe.
For this, several of the group were jailed, the British authorities of the time not noticing the irony of fighting for freedom in Europe while jailing dissidents at home.
The failure of the state — and the civil liberties movement — to stand for the right to free speech led to the formation of the Freedom Defence Committee.
Most of the supporters of the Freedom Defence Committee, including Orwell, would have had some sympathy with the anarchist position (Orwell had hoped, in the early days of the war, that the training and arming of the Home Guard would lead to a socialist revolution after the Nazis had been defeated. Apart from that, at least one of the accused, Vernon Richards, was a friend of Orwell’s).
But Orwell and his comrades in the Freedom Defence Committee were alert to the fact that one cannot simply defend the freedom of one’s friends. One also had to stand for the rights of communists and even fascists to hold their views. (Before any reader attempts to refer me to Orwell’s supposedly infamous “list” of communists and fellow travellers, supplied to his friend Celia Kirwan at the government’s Information Research Department, let me point out that it was a list compiled as a favour for a friend, not a blacklist: no one on that list was ever arrested, and they pursued their careers and lives unhindered). This led to the FDC taking the position that those with unpopular views – even those who had been (and still were) on the other side in the war, should be given the same justice as everyone else – demanding, for example, proper rights in cases of dismissal from employment when such a concept barely existed for anyone.
Fascists, communists and Islamists aside, there is probably not a single political grouping in Britain today that does not lay some claim to Orwell’s legacy. But as with free speech arguments, all tend to support the side that supports their side: libertarians cling to the anti-surveillance overtones in his work, while ignoring the long-held demands for state intervention on some issues. Conservatives admire the anti-communism, while ignoring the horror at capitalism, tradition, and the class system. Socialists pretend that Nineteen Eighty-Four and Animal Farm were anything else apart from scathing attacks on left utopianism.
Orwell was a far from perfect figure, but he did get a lot of things right — the fundamental one being the consistent application of principles on issues of liberty.
It is fashionable to invoke Big Brother whenever governments introduce new surveillance measures, or suggest censorship of extremist views. It is also, generally, silly and hyperbolic. But when faced with an enemy entirely at odds with democracy, as we are with Islamist extremism, it’s worth noting that, as did Orwell and his comrades, it is possible to attack the ideology while standing firm on freedom.
An earlier version of this article stated that a group of London anarchists faced prosecution for suggesting the Belgian resistance movements should not hand over weapons to their German liberators. This has been corrected.
