Are Twitter Fights Really Illegal? Surely Not!
A few days ago I wrote a piece that expressed my worries about the jail sentences handed to a young woman and a young man with learning difficulties for making threats on Twitter. In brief, I cannot deny that threats are beyond the pale and might justify criminal action being taken against the perpetrators, but I am still slightly uncomfortable with the decision for a variety of reasons.
Brendan O’Neill in Spiked has a different take:
If you read the judge’s summing up when he imprisoned Sorley and Nimmo, and the subsequent media coverage of their jailing, it is very clear that fundamentally they have been jailed not for making specific or meaningful threats of violence that had a possibility of being carried out, but for banging out insulting and offensive and outrageous tweets. They have been jailed, not because they are considered a serious physical threat to people, but because they wrote horrible, rotten, shocking things online – in short, because they were insulting.
Now, without any legal expertise, I have no idea whether O’Neill is right about this, and can only speculate. It did seem troubling to me that the judge apparently made no distinction between merely insulting tweets (I say ‘merely’ only with regards to the law – it is immoral to insult people, but shouldn’t be illegal), and actually threatening tweets. Of course, I recognise that most of the tweets the judge quoted were direct threats, and there were only one or two ‘mere’ insults. Nevertheless, clarity regarding the law is very important. If a single ‘mere’ insult is illegal according to a senior judge, then that has great significance to the question of how much freedom of expression we are afforded.
Including the insults in with the threats gives the impression to my mind that the insults were salient in the conviction. But, though O’Neill seems convinced this is the case, it surely cannot be true that insults have been declared illegal by a senior district judge. So what is the alternative explanation? Perhaps the judge was including those other tweets for context. Yet if that’s true, then why didn’t he distinguish the insults from the threats, if only the threats were illegal? It would be like saying “you are sentenced to prison for murder, and laughing”. It might lead one to think that laughing is an imprisonable offence! Perhaps therefore, the judgement was just imprecisely written, and the insults were provided for completeness without being clearly distinguished from the actual crimes.
Another possibility is that the insults were important, without themselves being criminal in any way. Perhaps saying “fuck off and die” or “ya not that gd looking to rape u be fine” before making a threat changes the legality of the threat. This seems odd to me though. If you threaten someone with rape or death, then you have already done worse than saying “fuck off, dumb bitch” or similar. I don’t think the insults really change anything here.
In summary, then, I’m unclear why insults would be included in the decision unless either the judge was being vague, the insults change the legality of the threats, or (as O’Neill has concluded) insults are now illegal. My optimistic best guess is that the judge was being careless, though I lack the legal expertise to say that with any confidence.