Harry Miller: “This is a warershed moment for liberty”
The police response to an ex-officer’s allegedly transphobic tweets was unlawful, the High Court has ruled.
Harry Miller, from Lincolnshire, was contacted by Humberside Police in January last year after a complaint about his tweets.
He was told he had not committed a crime, but it would be recorded as a non-crime “hate incident”.
The court found the force’s actions were a “disproportionate interference” on his right to freedom of expression.
In a separate story from the one I quote above, the BBC goes on to report that
Mr Justice Julian Knowles said the effect of police turning up at Mr Miller’s place of work “because of his political opinions must not be underestimated”.
He added: “To do so would be to undervalue a cardinal democratic freedom.
“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”
I did not know we still had judges like that.
Edit: This is the text of the judgement: Miller -v- College of Policing, 14 February 2020.
Thank you for the post Natalie. A good judgement – well written and just.
The modern world, under the influence of the Frankfurt School of Marxism (“wokeness” or “political correctness” of the “Social Justice Warriors”) is being taught, in the words of Herbert Marcuse and others, that tolerance is “repressive”, that Freedom of Speech is “Hate Speech” which “exploits” and “oppresses”.
One must not try and make a deal with the Frankfurt School of Marxism – try for “moderate” P.C. (or whatever), one must REJECT it. And the judge has done this.
If people object to the term “Frankfurt School of Marxism” I will use the term “Critical Theory” – as it means THE SAME THING.
Good to see the implicit equation of Nazism with Communism (Marxism-Leninism). Even better to see the equation of both of them with Frankfurt Marxism.
A minor point: i respectfully suggest to Harry Miller that it does not look good when you look down during your speech, even if it is to read from a prepared text.
Other than that, his posture exuded self-confidence.
I’m glad they did not limit themselves to telling PC Suvvidge that he had been ‘overzealous’.
I find our ancient High Court vastly preferable to our ten-year-old Supreme Court. I am glad the latter has annoyed Boris recently and very much hope he has a bit of Trump’s capacity to resent such things.
Rule No. 1 – never, never, ever talk to the Police without a lawyer present.
Rule No. 2 – see rule No. 1.
If they really have enough evidence to prosecute you, you will not talk your way out of it so shut up.
If they do not have any evidence you can definitely talk your way into trouble. So shut up.
The Police are NOT your friend, ever.
“Shh! Get down! There’s an armed robbery going on! Call the police!”
“I want a lawyer, first!”
“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”
Well you do now.
Thank you for posting this Natalie, you saved me the trouble of wading through it all and putting up my own posting, but I have read through the judgment anyway and what I note is that although the ludicrous and sinister actions of the police in dealing with Mr Miller were unlawful, the underlying policy ‘Hate Crime Operational Guidance’ ‘HCOG’ , which is accepted also governs dealing with non-criminal conduct that is known not to be criminal, is not: Look at paragraphs 221 – 226, which end with the following ‘vindication’ of the policy, and it goes on to paragraph 232 in similar vein.
So it’s OK to interfere with freedom of speech if you don’t impose too harsh a punishment.
And reading on to forward to paragraph 230 we find:
Of course, the learned Judge is applying the law as statute and precedent have set it, but I would venture that none of this would have come from Sir Edward Coke LCJ, he of Dr Bonham’s Case. He has in effect found that the police may make records of what people say or post on social media, even if it is obviously not criminal, in case there might be a crime later. I thought causing wasteful employment of police time was a statutory offence, but there you go.
The judge rightly took the individual police officer to task at paragraph 256, even though he gave the officer concerned the benefit of the doubt in some parts of his findings:
A High Court Judge finds that a police officer made a mis-statement of the facts in the course of his duties: Why is he still in his job?
And the judge was exceptionally generous here IMHO:
In case anyone thought that PC Gul and his superiors were wasting time and abusing their offices in the sinister quest to go after Mr Miller, the judge is prepared to assume otherwise, although I note this finding down below:
And having said that he doubted but did not have to decide that the tweets in question were even ‘non-crime hate incidents’, the learned judge gave a pointer to a possible course of conduct for the police:
So the judge is actually endorsing a secret police action, where they quietly record what people say or write, and take no further action.
It seems that the judge has actually found that we do have a Stasi, but that it should not operate in the way that it has been operating.
Edit: I started typing this before I saw John B’s point.
“Well you do now.”
We always did. Orwell didn’t make predictions. Nineteen Eighty Four was a book about 1948, when he wrote it.
The problem is that when you live in such a society, you can’t see it. All the most horrifying aspects are “just the way things are”. You never notice it, never think about it. You can’t, because your culture is constructed to make that ‘normal’. It fades into the background.
The reason authors set dystopian novels in alien cultures of the distant future or alternate universes is to allow us to see what culture and custom blinds us to. They take the habits and norms of today, and exaggerate and twist them into an analogous structure in some other culture. And the reader says “Gosh! That’s terrible! Those poor people!”
But then when their own culture changes, as it continually does, they see the structures in the stories reappearing in their own society. It’s like some dark prophecy of the end of the world coming true before their eyes! Scary!
But it’s just humanity, acting the way it always does. If we had never had such a society, JS Mill would never have had to write ‘On Liberty’, and Milton would never have wrote ‘Areopagitica’, because there would have been no need. Why write such a lengthy tract making the case for free speech if you’ve already got it?
The UK finally got rid of its blasphemy laws in 2008. The United States still has blasphemy laws on its books in some states. (e.g. Massachusetts General Laws 272-36.) A century back, women lived without the same votes or rights as men. Sixty years back, LGBTers had to live their lives in secret, hiding what they were from the authorities. Sixty years back, the US was only just getting rid of segregation. For minorities, it’s always been an Orwellian society.
We simply change what’s considered goodthink and what’s considered thoughtcrime. And even that was something Orwell covered – “We have *always* been at war with Eastasia!” Today we say “We have *always* been at war with Transphobia!” and the crowd cheers, and tears down all the old banners. As Orwell said: “The Hate continued exactly as before, except that the target had been changed.”
“So the judge is actually endorsing a secret police action, where they quietly record what people say or write, and take no further action.”
Yes. So do the police have a right to free speech, too?
Mr Ed, I may (and do) make such records for a time while developing a post. If the police were (like me) not able to arrest you for no more than speech then I might not mind their noting speech.
Nullius, unless you mean not about the UK but about Russia – and ‘1984’ goes well beyond even Stalin’s state in 1948 – that sentence comes across as strictly fruitcake, an impression only enhanced by, for example, your writing, as if it were relevant,
60 years back and more, anyone in the UK could legally publish gay war romances set in WWII and other gay war romances set in ancient Greece, could write and lecture claiming the sexual views of classical times empowered their civilisation (and would ours), etc., in much the same way, and with the same limitations, as others could write novels about murderers, prostitutes, pick-pockets, etc., but, if writing from personal experience, without providing legal evidence of their own practice.
In the U.S. today, someone who advocates in civil language for the innate genetic superiority of the white race can expect to encounter much public hostility but IIUC the 1st amendment means they commit no crime. Though sadly they no longer do, the ACLU once simultaneously defended both the legality and the deep unpopularity of people expressing such views. I do not see the US legal system as ‘1984’ as regards free speech merely because that view is very unfashionable and practising racial discrimination is subject to a raft of laws.
It is right that libertarians want there to be fewer laws in non-speech areas as well as more freedom of speech. However there is no value in confusing the two. This merely deflects us from seeing and feeling the full threat to speech today. Because free speech is a key enabler, its presence or absence is typically more important than regulation of other things, annoying though these may be.
“Unless you mean not about the UK but about Russia – and ‘1984’ goes well beyond even Stalin’s state in 1948 – that sentence comes across as strictly fruitcake, an impression only enhanced by, for example, your writing,…”
*Of course* it comes across as “strictly fruitcake”! Like I said: “The problem is that when you live in such a society, you can’t see it.”
I thought it was fairly well-known that the stuff about the Ministry of Truth was based on Orwell’s time working at the BBC, room 101 was a conference room there where he had to sit through long and boring meetings.
“60 years back and more, anyone in the UK could legally publish gay war romances set in WWII”
What, like Alan Turing’s autobiography? Could have been a bit awkward, that.
So you’re saying it’s OK if you can say what you like so long as you assert that any heretical bits are fictional and false?
Anyway, this is the sort of society we used to live in…
“Fruitcake”, eh?
Niall
The vital distinction being that the police are operating at taxpayers’ expense to (purportedly) uphold the law and prevent and detect crime, and if you are burgled, in some cases they might confine themselves to sending you a leaflet and perhaps suggest that you may wish to seek counselling; investigating actual crime and dealing with those inclined to rob, stab or rape people is, well, clearly not a priority.
But if the police wish to reassure ‘communities’ that they are vigilantly looking out for them by looking at things that aren’t crimes, by recording ‘speech’ or comments? What if a police officer chose to follow you around all day (outside of your own or others’ private property) in the hope of recording your ‘non-crime hate incident’ comments?
“investigating actual crime and dealing with those inclined to rob, stab or rape people is, well, clearly not a priority”
Possibly they counted the number of crimes occurring in their area, multiplied that by the cost of sending out a forensics team and bunch of senior detectives for several weeks to track down, gather evidence prepare a legal case, and prosecute a petty burglar, and found the total to exceed their entire budget.
“What if a police officer chose to follow you around all day (outside of your own or others’ private property) in the hope of recording your ‘non-crime hate incident’ comments?”
So what if they did? That isn’t illegal.
But when you’ve got two groups of people in conflict like this, each side will routinely ‘Follow’ the other side on Twitter hoping to record their ‘non-crime hate incident’ comments. It’s a particular feature of the debate nowadays. And is part of free speech. Twitter is public. Twitter the company themselves record everything you say on it, and are capable of using it against you, reporting you to the police. As is everyone else who reads you. That’s their free speech.
The question is, do the police have the same free speech and freedom of action that all the rest of us do? Or are there things they are ‘not allowed to say’, even in the privacy of their own police station? If the police can’t note down what people say, can the rest of us? If someone collects all our past politically incorrect Twitter and blog comments to use against us later, should that be made illegal?
There’s a difference between ‘I don’t like it’ and ‘it should be banned’. You might not like the fact that anyone can write down what you say in public and keep a record. But should it be banned?
Hell no. Not when they are working, I would certainly hope. We are so far from Pealian policing now that police forces are better through of as an army (triply true in places like the USA where police are very para-military).
+1 to Perry de Havilland (London) (February 17, 2020 at 12:00 pm). One might compare state-school teachers: do they have the same free-speech rights as the rest of us? Outside the classroom, very much so, but in any classroom where they have legal power to demand children attend and not walk out on them, a reciprocal obligation should restrain what they teach. (Thus I am endorsing Mr Ed’s comment on my comment above.)
(Of course, there are classrooms today where, thanks in no small part to the teachers’ unions themselves, teachers’ ability to enforce that legal power over kids is not so overwhelming. 🙂 )
“Hell no. Not when they are working, I would certainly hope.”
Marvellous! Free speech can be denied to people for Reasons. Now that we’ve established that, we’re just negotiating the price…
So what’s the justification? Is it because they are employed? (i.e. “when they are working”.) An employment contract may mean somebody voluntarily gives up free speech as required by their contract/employer. This, of course, would potentiallyapply to anyone in employment, and anyone subject to a contract.
Is it because they are like an army? If so, we just shift the question back one step – why would members of an army not have free speech? (Same goes for teachers.)
Is it because they have legal power to order people about? (Like a teacher.) If so, do the restrictions on speech only pertain to such orders (i.e. to the application/threat of force), or generally to any opinions they might express to the poeple over who they hold power? (i.e. ‘restrain what they teach’.) Or does it apply even to things they write in their private notes? Does the same apply to anyone with a legal power to compel – such as in a contract? (e.g. since your employer can give you instructions as part of your job, they cannot write what they like about you. And since you can require your employer to pay you, vice versa.) How about illegal power? Should a man with a gun have free speech? How about if he’s just bigger than you? If a big strong man talks to a small weak woman, should he have free speech? What’s the rule here?
Does the rule apply to any sort of power over other people? For example, a blog administrator has power to set rules on or exclude commenters. Does that constrain his or her own free speech? (By ‘a reciprocal obligation’.) Is there such a thing as Rousseau’s ‘Social Contract’, that obligates all citizens to conform to the collective social rules on what may or may not be said?
Are we talking about assault – the threat of imminent illegal force? If so, doesn’t that apply to everyone, and not just the police?
Or is it simply because we don’t like/don’t trust the police. They’re the ‘enemy’; a ‘them’ to our ‘us’? They deserve to have no rights, or we cannot justify giving them any rights out of self-protection against the danger they pose?
I hope you’ll pardon the questions, but whenever somebody says they have a justification for denying somebody free speech, I think it’s important to establish the boundaries, generalisations, and consequences – because they usually extend far further than just the case under consideration. Normally, I’d say the position is that ‘your liberty to swing your fist ends just where my nose begins’, no exceptions. Words and opinions are free, only actions are constrained. And only when words effectively constitute a use of force (as in assault, or incitement, or contract) are words thereby covered. But I don’t see how that applies in this case, to words expressed in private on a non-public computer database with no coercion involved, so I’m interested to see what new principle we’re applying here.
In this case, we don’t deny anyone free speech. We deny them the right to exercise the power of the state to further their own ends – and we deny them the employment as a cop if they insist on so doing.
Basic “time, place, and manner” restriction on speech that has been accepted ever since theaters started not burning.
“In this case, we don’t deny anyone free speech. We deny them the right to exercise the power of the state to further their own ends”
Agreed, and that’s what the judge said. I think people want to go further, though.
“… accepted ever since theaters started not burning”
Ah, yes. Shouting ‘Fire!’ in a crowded theatre – it makes the restriction on freedom seem plausible. Two problem – one is that sometimes people genuinely believe that the building is on fire. Should they stay silent if that is so? Should they be punished if they do so and turn out to be mistaken? What are the consequences of banning fire alarms and fire drills in theatres, which are essentially devices for shouting ‘Fire!’ very loudly? Is the alarm the real source of danger here, or the stampede? And secondly, a lot of the things people want free speech about amount to shouting out that there is a ‘fire!’ in society. There is some dire danger, some hobgoblin so fearsome, that people need urgently to be warned. Is ‘Climate Change’ a case of shouting ‘Fire!’? How about Socialism? (Or Marxism of the Frankfurt School…) Political correctness? Intolerance? The Deep State? Trump?!! They all could be argued to be shouting ‘Fire!’ in a crowded polity in the expectation of stampeding voters into a populist response. And that, those opposed would argue, is dangerous in the same sort of way it would be in a theatre. And thus, they say, politically populist alarmism should justifiably be restricted.
The consequences usually extend far further than just the case under consideration.
I have been told that the restriction is generally misquoted, and was made against falsely shouting “Fire!” in a crowded theatre.
By the state, Nullius. This is not hard.
In a free market, teachers who, for example, exercise their right of free speech to be silent all through the school day, reading a book or surfing the web instead of teaching, may find few parents signing up kids to their school. But if the state collects taxes to pay the teachers salary, and legally requires children to spend hours in the classroom every weekday, then it is natural their parent voters attempt to use the cluncky mechanism of the state to have such teachers speak and be not silent when in that same classroom, and then to have them speak in a way those parent voters think is teaching, not propagandising.
(It is also natural that the cluncky mechanism of the state is often more responsive to the teachers’ self-serving desires and fashionable fads than to the wishes of the parents who are compelled to pay for them.)
Given the sort of rhetorical-flourish-idiocy questions that PC believers in hate speech laws will ask in the rare cases they debate us instead of silence us, there can be value in answering many a question that, from another point of view, might seem too obvious to need asking. The question of what is valuable contribution to cognitive diversity, what is sadly-needful practice for the harsh freedom-hating world beyond the cloisters of samizdata and what is mere time-wasting is one that sometimes occurs to me as I reply – or decide instead to get on with the work I am paid to do – to some comments (disproportionately yours 🙂 – I hope you’ll pardon this bracketed statistic).
“By the state, Nullius. This is not hard.”
Is it not? It seems quite difficult to get a detailed and precise answer.
So, a cleaner employed to empty the bins in the local council offices has different speech rights to a cleaner who empties the office bins for a private firm, because the former is employed by the state. Is that what you mean? Or did you mean something else?
“Given the sort of rhetorical-flourish-idiocy questions that PC believers in hate speech laws will ask in the rare cases they debate us instead of silence us, there can be value in answering many a question that, from another point of view, might seem too obvious to need asking.”
Questions too obvious to need asking are usually the result of unexamined cultural assumptions, that not everybody shares. For a lot of people, the need to ban hate speech is “too obvious to need asking”. If it’s a part of your mindset, it doesn’t even occur to you to question it, so it doesn’t occur to you that anyone else might need a reason or justification for it, rather than just knowing.
“It’s obvious!” usually means “I have no explanation. It just is.”
“The question of what is valuable contribution to cognitive diversity, what is sadly-needful practice for the harsh freedom-hating world beyond the cloisters of samizdata and what is mere time-wasting…”
It was a serious question. I genuinely don’t understand how any libertarian can argue for restrictions on free speech for reasons other than to prevent unconsented harm. Whether they are employed or not, whether employment is by the state or not, or whether you have any market power to make them say what you want them to say rather than what they want to say, it makes no difference under that principle. Employees of the government can hold and express any opinions they like. The government itself can. It’s only compulsion itself that can rightly be constrained, and words that do not compel, whoever they are expressed by, are not covered.
I respect the viewpoint and reputation of people around here enough to think that when we disagree, there may be something to your point of view, some unobvious reasoning I’m not seeing. That’s what cognitive diversity is about. But I’m only asking on the basis that you, like me, are interested in understanding the reasons and principles at the foundation of libertarianism. If you’re not, and if you think it’s a waste of time, then please feel free to say so and not answer. I can of course draw my own conclusions from that, as you are free to draw your own conclusions from my questioning. I have no wish to compel answers from the unwilling, even if I could.
If the teacher makes a note in her notebook (purely as an aide memoire) that Dick has been constantly calling Jane nasty names and making her cry, but says/does nothing about it, that’s surely not for us to compel or forbid. (It’s not like we can stop her thinking it, whether it’s written down or not. And they may be useful later for the enquiry after Jane commits suicide.) If you was Jane’s father, the teacher making such notes likely wouldn’t be a reason for you to want to find her another school. Making notes about the kids’ behaviour is widely regarded as part of the teacher’s job, even in the private sector. Why do people think words without consequence expressed in private should be restricted? Because a teacher is employed by the state?