James Kelly Square

Free speech includes the right to be mean about war heroes

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THE RIGHT TO freedom of speech has an in-built test that can be used to weed out anyone who doesn’t really value it. If someone is presented with a statement with which they agree, or are indifferent to, and they nod it through then this really tells us nothing. If, however, that same individual comes across something they find unkind, unpleasant, or unpalatable and at that point, as many unfortunately do, they recoil and stutter something along the lines of, “well, I’m all for free speech but that’s too far”, then you have before you someone who is at least inconsistent if not a brazen hypocrite.

Tests such as these occur on a semi-regular basis for anyone interested in free speech but I can’t recall a better one than that of Joseph Kelly. The 36-year old from Castlemilk who is due to head to court over a tweet he sent in February of this year.

For context, while many of us were taking to social media to mourn the death and praise the fundraising and much-need morale-boosting efforts of the late Captain Sir Tom Moore, Kelly decided to tweet that, “the only good Brit soldier is a deed [sic] one, burn auld fella buuuuurn”.

A distasteful remark no doubt, but a criminal one?

Apparently so, according to s127 of the Communications Act 2003 which states that a person is guilty of an offence if he:

sends 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

Kelly’s tweet, which he promptly deleted owing to the response it received, was nasty. We still have access to it, here, however:

It was mean, uncaring, childish, showed a lack of gratitude, and betrays him as holding the most boring, asinine, and dull form of Scottish republicanism stitched together with the thin thread of Irish fetishism. I have a rule for this kind of individual. If a Scottish person’s entire political identity is based on the politics, present or past, of Ireland or Northern Ireland then that person is not worth listening or bothering with in any way. They are the dullest men (and it is almost entirely men) in Scotland and a yawn is all they should ever get – they deserve nothing more than that. They can take their tricolours, sashes, and the rest of it and bugger off!

Should what Mr Kelly said be a criminal offence, however? I don’t think so. And since this has become a matter of freedom of expression, I’m begrudgingly duty-bound to give him some column inches – I hope he’s grateful.

He was clearly making a joke and a closer look at the text of what he said demonstrates this. A joke, to borrow a definition first brought to my attention by Jimmy Carr, is that which tells two stories and the first forces you to make an assumption about the second. Mr Kelly’s tweet does this, although in a crude and incredibly unfunny kind of way. He thought he was being funny and there was, from my reading, no attempt to incite violence or anything of the kind. He was making fun of an incredibly generous, inspirational, and charming old man who had recently died – this was his ‘crime’, if you like, and also his punishment.

Mr Kelly does prove useful at least in part, presumably a first for him, as he draws attention to what is some very bad law indeed. The particular section of the Communications Act that he has been charged under is fundamentally dangerous and constitutes a serious threat to freedom of speech. I point to the test I illustrated earlier. This pitiful little clause, with its talk of obscenity, offence, or menace, places judges in the role of the individual who considers everything that they agree with or are neutral towards to be valid free expression but anything that meets these appallingly arbitrary and obscure conditions is a criminal offence worthy of prosecution.

By way of a contrast, consider the recent arrest of Jeremy Corbyn’s brother Piers for comments he made in central London during which he clearly, and despite his lack of awareness, on film, urged his followers (sadly, that plural is not a typo) to “get a bit more physical” and “burn down” the offices of MPs who voted in favour of Covid-19 measures.

It’s awfully good of Piers to provide such an example for me because that is what I would consider to be incitement to violence. As much as it is tempting to laugh at the more barmy Corbyn brother, an impressive achievement if nothing else, what he said is likely to pop the idea of taking some such violent action into the minds of one his droogs. That is the line that we regrettably must draw and he has crossed it.

The question is, did Joseph Kelly, although clearly a risible man, do anything like that? The answer must surely be no. He made a rubbish joke on social media and has reaped the rewards for it in terms of social ostracisation and his tubby form has been figuratively ripped apart in the Daily Mail and that really ought to be the end of it.

Worse still, this trial will be, as they all are, expensive. Is the investigation of nasty tweets and the subsequent criminal procedure really worth it when the public verdict on this rather sad little man has already been announced? I don’t think so. He will have to live with this incident for the rest of his life and that is punishment enough. Future employers, romantic partners, and friends will Google him and find… well, they’ll find the Mail article.

Spending more taxpayers money for him to end up with a slap on the wrists (at least I hope to God that they’re not considering anything more punitive than that or we really are in trouble) seems like spending thousands of pounds to fit spinning rims, LCD screens, and a state of the art sound system to a clapped out old banger. At best it’s pointless, and at worst is a colossal waste of money and resources.

Free speech discussions are easy when they’re easy. However, the ones like that of Mr Kelly are what matter because they’re hard. He should not be convicted and the whole ludicrous offence with which he is charged ought to be scrapped and replaced with something much more nuanced, detailed, and specific because, who knows, the next time you have a couple of glasses of wine and get on Twitter to tell the world how you really feel, you could wake up with a hangover and a judge peering at you over his rimless glasses… and no society that values free speech should let that happen!

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