9 November 2022

Policing free speech: why jailing two Met officers for ‘offensive’ messages should worry us all

By Marc Glendening

Defending free speech seriously, as opposed to just rhetorically, means defending the right to expression of those we vehemently disagree with (including those who would put us up against a wall come the revolution), are embarrassed to be associated with, and whose outpourings we find repugnant.

Political liberals worthy of the title should, therefore, be appalled by the decision of Westminster Magistrates Court to imprison two police officers, Jonathon Cobban and Joel Borders, under Section 27 of the Communications Act for sending ‘grossly offensive’ messages on WhatsApp. Their messages on a private group that included PC Wayne Couzens, the murderer of Sarah Everard, contained rape jokes, racism, homophobia – the abominable works. However, in a free society people should be free to be ‘grossly offensive’, because what constitutes this is, by definition, a matter of subjective judgement.

Should leftwing comedians like Frankie Boyle and others be prosecuted for their far more public bad taste jokes directed against the monarchy, Glasgow Rangers, the working class and disabled children? Jokes or statements that I consider morally dubious and emotionally painful may, to you, be within the bounds of good taste and legitimate speech, and vice versa. And after all, nobody forces us to go on to social media, switch on the telly, go to a comedy show or otherwise expose ourselves to material we don’t appreciate.

If the Metropolitan Police had decided to suspend or expel their two employees for breach of contract that would have been fair enough. The Met does need to put its house in order and gain the trust of Londoners by rooting out individuals who, by their actions and statements, indicate that they cannot be trusted to administer the law impartially. Good riddance to these two, then. However, the state has no place criminally prosecuting people for being rude, however vile we find their views.

Arbitrary judgements like these risk a slippery slope towards authoritarianism. The police have already awarded themselves the right to place people on ‘non-crime hate incident’ databases for communications they don’t think they can secure a conviction for. As a result, 120,000 people have a DBS record just for expressing political views, often on subjects where there is plenty of reasonable grounds for disagreement, such as the conflicts of rights between transgender and natal women.

In this way, Britain is incrementally, silently, transitioning away from a society committed on principle to freedom of political and cultural speech, to one in which there is an emerging state-approved ideology. This partially explains the reticence of the police to take action against Extinction Rebellion activists or the spectacle of Kent’s chief constable, Alan Pughsley, taking the knee at a Black Lives Matter event.

But the most alarming aspect of these cops’ conviction is that their correspondence was, by definition, private. Their obscene ‘banter’ was entirely a consensual, voluntary affair. Arguably, this prosecution is the communications equivalent of the Operation Spanner case in the 1980s, when a group of gay men were prosecuted for consensual sadomasochistic sex acts, sparking protests over state intrusion into intimate relationships.

Back then the authorities were exerting control over people’s private lives to enforce (usually Christian-informed) subjective values, against a backdrop of negative attitudes towards homosexuality. Now, they are seeking to police our political and cultural lives.

The current government is planning to implement the Online Safety Bill, the law Kemi Badenoch was committed to abolishing. Section 150 could see you prosecuted for sending a message that is then forwarded by another person to a member of a ‘likely audience’ that is then judged – how exactly? – to have caused them ‘severe emotional distress’. It stretches credibility that a Tory government should put such legislation into effect.

The two convicted police officers are appealing their conviction and, whilst their removal from the force is welcome, I for one hope they are successful. However grotesque their sentiments, they have as much right to express them as anyone else in a society that has pretensions to being a pluralistic democracy.

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Marc Glendening is Head of Cultural Affairs at the Institute of Economic Affairs.

Columns are the author's own opinion and do not necessarily reflect the views of Cap