An Appellate Decision, “In The Worst Possible Taste”

It’s past surprising that college students, and their adult enablers, are analogized to 1984’s Ministry of Truth, but when the trend extends into cries that appellate court opinions should be sanitized to omit offensive language, it’s noteworthy.  That it happened in Scotland may make some feel less concerned, but that it happened at all suggests that the United States could well be next.

From the Herald Scotland:

Calls have been made to remove jokes about paedophilia and the murder of a child from a ruling on the judiciary’s official website after they were deemed too offensive for the public

The Scottish Court Service has been urged to delete details of a hearing which centred on whether an accused, Liam Rodgerson, should have been placed on the sex offenders register for posting distasteful jokes on Facebook.

How distasteful?

The gags were published despite being considered so offensive the public were asked to leave the hearing when they were read out.

This raises a great many questions, not the least of which is why Rodgerson was prosecuted at all for publishing “gags,” notwithstanding how offensive they were, which is exacerbated by the fact that the court published them as well.

But the “bizarre” decision to publish on the court service website sparked questions from the legal profession over why, if they were serious enough to attract prosecution, they were repeated so publicly.

The Scottish Conservatives have now urged the court service to consider removing them.

The party’s chief whip John Lamont said: “It seems bizarre for the courts to jail a man for posting sick jokes online, only to publish the remarks themselves.

“People will be perplexed as to why this was done.

The question is an obvious one, though the reaction is similarly bizarre. Rather than the “solution” being to remove the jokes from the court’s decision, why not reverse the conviction and dismiss the charges?  After all, the crime of publishing offensive jokes is no less harmful when on Facebook than in a court opinion, if it’s harmful at all.

But convicting Rodgerson of the crime of offensive jokes wasn’t the end of the burden imposed on his speech crime.

The sheriff who sentenced Liam Rodgerson for the crime, an offence under the Communications Act, placed him on the register, but appeal court judges overruled the decision claiming that posting sick jokes does not make someone a danger to the public.

Appeal Judge Lord Bracadale said: “The appellant and the co-accused exchanged sick jokes in the worst possible taste. They were, however, clearly jokes; they reflected the format of jokes.

“In our view it was not open to the sheriff to conclude that the appellant was a person who constituted a continuing danger to others such that registration was required to protect the public from him.”

Stop him before he jokes again?  Protect the public from bad jokes?  Is this a bad joke in itself? The reason for a recounting of the facts underlying a court’s decision is fairly obvious, and unlike much of what happens in Scotland, translates fairly easily to our legal system.

A spokesman for the Scottish Courts and Tribunals Service said: “Judgments of the Supreme Courts are published at the request of the appeal court judges to explain the reasons for reaching a particular decision.

“Where necessary the opinion will include reference to material placed before the court, in order to ensure that the facts and circumstances are read in their context and fully understood.”

One of the overriding problems in the midst of the current trend of untethering words from definitions, and offering conclusory language where facts and details are required to have an understanding of whether there is a basis for the conclusion, is that we’re often left to blindly accept someone’s claim that an offense occurred because they say so. When an alleged victim proclaims, “I was sexually assaulted,” does that mean someone with a weapon grabbed them on the street, or said, uninvited, “smile” in their sociology class?

But to call for the sanitization of a legal opinion ups the ante. Clearly, the judge who wrote the opinion believed it necessary and appropriate to include the language involved in order to provide context and substance to the decision.  Whether that’s true may be debatable, but the decision belongs exclusively to the judge who wrote the decision. Legal opinions are not crowdsourced for their pleasing nature.

To test the question of whether the context, the jokes themselves, are significant to the opinion, ask yourself whether you want to know what the hell Rodgerson could have said that was so awful, so offensive, as to constitute a crime and compel the sheriff to place him on the sex offender registry.  Of course you want to know, because without knowing, you would have no clue where a joke turns the corner from funny or unfunny to criminally offensive.  How could you limit your humor to that which won’t put you in the pokey if you don’t know where the line is drawn?

Yet, this also raises the more fundamental problem of criminalizing words and thoughts, no matter how offensive they may be. While Scotland has no First Amendment, no right to free speech, the same slippery slope of what distinguishes acceptable speech from hate speech, or offensive speech, knows no borders.

Is it possible to draw a line?  Or does it fall within the “I know it when I see it” rubric that provides no principled distinction and leaves it at the whim of whomever deems himself the arbiter of taste and feelings?  While this doesn’t seem to be much of a problem to those who feel their amorphous view of social justice entitles them to decide when a microaggression is sufficiently hurtful that its perpetrator must be punished, the rest of us are left to ponder what will be found offensive tomorrow, and what words or ideas will be allowed to exist that won’t hurt someone’s feelings.

Of course, the idea of letting every individual create their own rules for other people’s speech and thought seems ludicrous, except to those who feel desperately entitled to censor others.  Perhaps the answer will be to have legal opinion, Facebook jokes, our every utterance, officially approved. The Ministry of Truth will probably be right for the job.

H/T Walter Olson

30 comments on “An Appellate Decision, “In The Worst Possible Taste”

  1. mb

    What’s the difference between a dead baby and a sandwich?

    You don’t fuck a sandwich before you eat it.

          1. PDB

            One more for the mix:

            [Ed. Note: No. Once was to demonstrate a point. There will be no more “for the mix.”]

  2. Keith

    Clearly, the judge who wrote the opinion believed it necessary and appropriate to include the language involved in order to provide context and substance to the decision

    Or maybe this purveyor of smut just hasn’t been caught and prosecuted yet. Who the hell is watching the watchmen in this Ministry of Truth?

  3. EH

    Damn, I want to know those jokes. It’s the perfect setup line: “Now listen carefully, guys; this joke is so bad it’ll literally get you arrested in Scotland…”

  4. EH

    Unfortunately it turns out the jokes aren’t even all that funny.

    [Ed. Note: Balance of comment deleted, because it didn’t occur to EH that if I wanted to publish the jokes, I would have published the jokes, but that it isn’t his place to publish the jokes because he’s too much of a bone head to think that he isn’t the center of the friggin’ universe. And as for “what’s funny,” it doesn’t occur to EH that he doesn’t get to decide what other people will find funny, and no one else gives a shit what he finds funny, as everyone gets to decide for themselves.]

  5. David Stretton

    These are the jokes repeated in the decision. Because inquiring minds want to know. Lazy, but inquiring.

    [Ed. Note: Deleted. Again. How cool would it be if commenters read the comments already posted?]

    About the usual assortment of jokes; some are juvenile, some are icky, and one (the last one) is actually rather good.

    1. [email protected]

      Your comment to EH hadn’t been posted yet. That’s how cool.

  6. dm

    Isn’t it likely that the relatively narrow readership of legal opinions is mostly lawyers? But for having made a stink about it the “jokes” would likely have toiled in obscurity. Another instance of the pseudo Streisand Effect (or perhaps the actual Streisand Effect)?

    1. SHG Post author

      Obviously. And if that wasn’t abundantly clear, note that a couple commenters already have suffered the compulsion to post the jokes here.

  7. Grum

    Interestingly, the sex offender registry addition appears to have been prompted following an email from the police – “We are bound to express surprise and some concern that the matter was raised by a direct approach from the police to the court rather than through the Crown.”
    There’s another interesting bit in there “In this difficult exercise, in my view, sentencers should consider the accused’s behaviour in the context of the purpose and the effects of registration, keep a sense of proportion and use their commonsense.”
    This, and quoting the jokes verbatim on a public website.
    The whole thing is utterly insane, of course, but at least the High Court is politely pointing that out.
    There may be hope.

          1. Grum

            Yeah, it may well elude you.
            Being an inhabitant of said, small, backwards country, I think you miss some subtilties in the story. Yup, two idiots posted things on facebook, to which they apparently pleaded guilty, so they are stuck with that. There is a puritan tendency, somehow revived, of which I am not a fan, and which needs stamped on, heavily, for sure, but that was not the subject of the appeal. I saw no reference to anyone being jailed.
            The phrase “in the worst possible taste” implies a certain familiarity with the works of a popular comedian and radio broadcaster, now deceased.
            The Herald is a rag, of no consequence; the Scottish Conservative party, doubly so. You would struggle to find a political movement in the States which represented fewer people.
            The appelate court judgement basically gave the sheriff (sadly, they don’t wear the hat & stuff) and the police a kick in the bawz, as we say.
            The whole thing, as your post makes clear, is stupid beyond belief, but there does seem to be some sanity left, at least for now.
            Also we have “not proven” and this strange “two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime”.
            I bet you’d love that.

            1. SHG Post author

              Thanks for the local color, though my concern really had nothing to do with Scotland, but with the creeping trend of criminalizing offense that could wash up on our shores. I’m kinda jingoistic in that regard.

  8. Jim Tyre

    Not that I was planning on posting the jokes, but I was interested to see what they were. Best as I can tell, however, the judgment has been disappeared from the court site. Good job, SHG!

  9. David M.

    Rather than the “solution” being to remove the jokes from the court’s decision, why not reverse the conviction and dismiss the charges?

    Quod licet Jovi non licet bovi.

  10. Marc R

    Assuming, the decision was legally solid, should the court have just given the general subject matter of the jokes or is there a duty to inform the public? I’m thinking for example a person saying “bomb” in an airport where the detaining the TSA guy repeats the same the words to a real LEO without repercussion. Or the government keeping child porn in their drawers for trial where nobody has a legal right to view it. Is context, a legal opinion, different for a bad joke being posted?

    1. SHG Post author

      It would seem that it’s up to the judge. But try arguing that a precedent applies (or doesn’t) when the decision omits the salient the details.

  11. Wrongway

    I know I’ve seen stuff like this on ‘South Park’ ..
    I was literally reading & laughing.
    But I get it, or at least I think I do.
    It’s a trend of ‘someone could be hurt by this’.. & using laws, through whatever interpretation they hope some judge accepts, the Authorities must put a stop to it..
    the accusation itself has severe teeth behind it..

    A ‘Feelz’ based society requires a Judicial System to protect them from an offense of any sort..

    So, If I Offend You, & I’m Judged Guilty by ‘the Mob’, who will film me committing ‘Hara Kiri’ on youtube to retain my honor ??

    Volunteers ??!!??

  12. Ken Mackenzie

    The Scots have an almost constitutional right to free speech, in Article 10 of their Human Rights Act (UK). It goes to show that it is not just the enshrinement of the right that matters, but the will of the courts to give it teeth.

  13. Ken Mackenzie

    The accused in this case pleaded guilty, so chose not to test the limits of their right to free expression.
    The judgement, including the jokes, is still available at the court’s website:
    [Ed. Note: Link deleted per rules. Ahem].

  14. Andrew_M_Garland

    How do you explain to a government that jokes, mere speech, do not deserve punishment? How, when even needing the explanation shows that the government is stupid or venal, so that making the explanation is a lost cause?
    Monty Python’s Flying Circus – World’s Funniest Joke

    The above does set an example where the joke itself is dangerous. A consistent jurisprudence can begin from there.

    1. SHG Post author

      One of the harder thing to do for Americans is to appreciate that our view of the value of speech isn’t shared in other countries, where there is no First Amendment. They get to punish what they want. They’re neither stupid nor venal, but have different values than ours. They’re allowed. Just don’t bring them to our shores.

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