The Jeff Cumberbatch Column – Anti-social and Distasteful…but Criminal?
“…[P]unishment for mere mental states is intrinsically unjust because such punishment would be a form of mind control – Gabriel Mendlow, “Why is it wrong to punish thoughts?”  127 Yale L. J. 2342
It is by now beyond dispute that the freedom of expression constitutionally guaranteed to everyone is not absolute. Not only are there the express limitations or qualifications provided in the Constitution itself, but there also exist limitations imposed by common law and statute and by considerations of decency, situational appropriateness and what may be generally regarded as good societal conduct.
Given the significance of free expression in a democratic society, these limitations are closely policed and in the inevitable tension between the freedom and its proscription, it may be observed that the modern trend bends towards the increase of the freedom rather than towards its diminution.
As President Saunders of the CCJ had cause to observe in a recent decision-
Because it underpins and reinforces many of the other fundamental rights, freedom of expression is rightly regarded as the cornerstone of any democracy. A regime that unduly constrains free speech produces harm, not just to the individual whose expression is denied, but [also] to society as a whole. On the one hand, the human spirit is stultified. On the other, social progress is retarded. The fates of brilliant persons like Galileo, and Darwin, and countless others, sung and unsung, betray a familiar pattern in the history of humankind. Today’s heresy may easily become tomorrow’s gratefully embraced orthodoxy…
Indeed, in light of the proliferation of modern communication through social media, with its inherent anonymity permitting the expression of even more ideas that we might disagree with either in form or in substance, it has become necessary for us to reconsider the nature of our freedom of expression and to examine whether our society is more likely to benefit from an extrapolation or from a further attenuation of this freedom.
According to the introduction to The Free Speech Century, a text edited by two of the leading First Amendment scholars in the US, “While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news.”
It is further suggested there that we shall need to interrogate “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment [sc. freedom of expression] jurisprudence is based?”
I, likewise, pose this query here in the wake of the news item earlier this week where a young man was convicted of sending an electronic communication that was “menacing in character, intending to cause or reckless as to whether it caused annoyance inconvenience, distress or anxiety to the recipient or to any other person to whom he intends it or its contents to be communicated”. This conduct is criminalized by section 14 of the local Computer Misuse Act 2005. According to one newspaper report, the annoyance, inconvenience, distress and anxiety would be caused to the members of the Royal Barbados Police Force.
The matter was tried summarily in the Magistrate’s Court and the accused confessed to the offence anyway so of course the issue as to whether this provision disproportionately compromises the constitutional guarantee of freedom of expression was never broached.
However, I have long held the view that this specific criminalization of expression would not pass a test of strict scrutiny so as to be held constitutionally compatible. First, it appears to particularize electronic communications as being somehow more offensive than other modes. To my best knowledge, there is no equivalent offence for causing mere annoyance or inconvenience especially to others by ordinary oral communication. Should every opinion that might annoy us be made criminal? Or is this a necessarily incidental hazard of societal existence?
Moreover, the section does not stipulate that the annoyance, inconvenience, distress or anxiety produced must have been a reasonable response to the communication by the individual affected. A comment from the American Civil Liberties Union seems apposite-
Our Constitution protects hateful speech, yes — but on the theory that truly free speech means the best ideas will win out. We need [people] trained to really listen to ideas they hate — and respond with better ones.
I, too, agree that the message used by the young man in this case was obscene and distasteful, but strictly construed, he did no more than express an outrageous perverted desire without threatening to accomplish it personally. Ought a police officer of reasonable fortitude to have been annoyed, inconvenienced, distressed or made anxious by the communication? Ought the accused to be punished for his anti-social, perverted thoughts?
I dedicate this week’s column to the memory of my father who was called to higher service on Tuesday of last week at the age of 93. It was he who taught me to read and he was an avid fan of my weekly musings. Until he became too ill to do so, he patiently and lovingly collected every one of them. May his spirit travel home in safety and peace.