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.
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