There is no such thing as ‘free’ speech, it comes at a price

So you pop into your local coffee shop, you order your usual caramel oat milk latte, you meet a friend and you chat, and you pass on a piece of scurrilous gossip about a mutual acquaintance that, while entertaining, is entirely devoid of any basis in fact.

You have behaved irresponsibly, indeed reprehensibly. But have you committed a crime? I think not: I know of no country in the world under the rule of law where a prosecutor could hope to obtain a conviction.

However, what if you were to post that gossip on social media? And what if it were so entertaining that your followers shared it with theirs, who shared it with theirs, who shared it with theirs, and so on (the definition of “going viral”)? And what if some people who read your gossip formed, as a consequence, a negative opinion of the person being gossiped about? And what if some of those people took physical action in support of that negative opinion? Is your original post now a crime? And if it isn’t, should it be?

This debate has been simmering since social media was in its infancy, but it has achieved new salience in light of events this month on the streets of the UK. You don’t need me to tell you what happened, you will have seen the video footage: and let us be clear that this is not about the swift and punitive justice meted out to thugs who rioted in the streets.

Those hefty prison sentences, by the way, were no accident. The last time England endured such rioting was in 2011. The violent disorder at that time was brought to a rapid end by an accelerated court process that quickly identified, charged, prosecuted, convicted and jailed the worst offenders, thus deterring any others from following the same path. That campaign was driven by the UK’s chief prosecutor at the time, Keir Starmer. This month, but now as prime minister, he deployed exactly the same playbook, with exactly the same results.

How is it possible for a sentence to be fair when no one knows how much harm — if any — the offense actually caused? 

Ross Anderson

So, no tears for those guilty of violent disorder, they had it coming. However, of about 1,200 people arrested over the riots, roughly 650 have been charged: 29 of them committed no acts of violence and are accused instead of offenses related to social media or other online activity.

They include a 53-year-old woman with no previous convictions, imprisoned for 15 months for saying on Facebook that mosques should be blown up; a 34-year-old man jailed for three months for saying that riots would “keep our kids safe;” and a 31-year-old man jailed for 12 weeks for posting offensive emojis of ethnic minorities.

None of this behavior is in any way excusable, but to criminalize it must surely provoke a feeling of slight unease. In fact, sentencing one man in such a case, the judge admitted that, while the offender had contributed to “a spider’s web of disruption that caused riots,” there was no way of quantifying how much disorder his post had caused. But should that not be the whole basis for a criminal penalty? How is it possible for a sentence to be fair when no one knows how much harm — if any — the offense actually caused?

As I said, this debate is not new. In January 2010, a young man called Paul Chambers, frustrated by flight delays during a spell of bad weather in the UK, thought it would be a merry jape to post a message on social media threatening to blow up his local airport in Yorkshire. In what became known as the “Twitter Joke Trial,” he was convicted of sending a menacing electronic communication, fined £385, and lost his job. The prosecution was widely viewed at the time as a farce and the conviction was overturned on appeal two years later. However, a year later, during the widespread UK disorder in 2011, two men in their early twenties were jailed for four years each for using Facebook to incite a riot. Their appeal was unsuccessful.

I call this a debate, but in one country at least the discussion ended on Dec. 15, 1791, with the adoption of the First Amendment to the US Constitution — guaranteeing, among other things, the right to free speech that Americans have guarded jealously ever since. There is a view in some quarters that freedom of speech and expression are a sort of icing on the American cake, a luxury that you can easily afford when you are already the most militarily, economically and culturally powerful empire the world has ever seen. In fact, it’s the other way round: those freedoms are the very bedrock and foundation of that empire. They are how it was built.

Other countries do things differently, as is their right. In most of the Gulf states, reputation is paramount and any statement critical of a person or a business may be deemed a criminal offense. UAE authorities are particularly vigilant and many naive Western expats have fallen foul of the law, accustomed as they are to the valuable role of fair and honest reviews in influencing consumer choice.

In Thailand, to say or write anything disobliging about a monarch (living or dead) is to invite charges under the world’s harshest lese-majeste laws, which are enforced with unseemly enthusiasm, often for nakedly political reasons. Mongkhon Thirakot, a political activist from Chiang Rai, was sentenced to 50 years’ imprisonment in January for a series of Facebook posts deemed critical of the monarchy. My own view is that a monarch who cannot handle a bit of mockery is probably in the wrong job: just ask King Charles, who has been lampooned mercilessly by sections of the British press since he was a boy. But hey, I’m not Thai.

I have always been a freedom of speech absolutist — although I began to have doubts when I discovered that Elon Musk was one too. I can think of no argument in which I would be comfortable on the same side as Musk, a man once memorably described as “half genius, half fool.” I yield to no one in my admiration and respect for Musk’s achievements with Tesla and SpaceX, and with PayPal before that, but he seems incapable of opening his mouth in a public debate without putting his foot in it.

For example, his comments on this month’s civil disorder in the UK ranged from merely incendiary to borderline unhinged. He told his 193 million followers on X that Starmer planned to incarcerate rioters in the Falkland Islands in the south Atlantic; that British police operated a two-tier policy of treating far-right offenders more harshly than others; asked “Is this Britain or the Soviet Union?” and, my personal favorite, stated that “civil war is inevitable.” What? Seriously? Mate, you need to get out more. England last had a civil war in the mid-17th century and takes the view that, on balance, it is not going to make that mistake again.

The response of Britain’s current chief prosecutor to Musk’s interventions was that they were “not terribly helpful,” which must have driven Musk mad: British understatement is a concept alien to most Americans, even adopted ones.

Light, as they say, is the best disinfectant, so let’s leave all this nonsense out in the open where the rest of us can laugh at it.

Ross Anderson

So, does all this mean that Musk should be silenced? That legal muzzles and gags should be affixed to everyone who uses social media to spread content that is vile, hateful, racist, sexist or misogynist, that incites violence or is merely misinformed or inaccurate, whether intentional or not?

It is true that every time Musk and his fellow social media warriors join an online debate, their irresponsibility makes a strong case for such curbs. Nevertheless, the answer must still surely be no. Repressive laws do not change how people think, they merely force them underground, where they can exchange their vile views in increasingly encrypted and undetectable echo chambers. Light, as they say, is the best disinfectant, so let’s leave all this nonsense out in the open where the rest of us can laugh at it.

A better solution than the law is, as with so many of society’s challenges, education. I have the advantage of having been a journalist for my entire adult life. Early on, I was taught healthy skepticism. Believe nothing at first glance. Check everything. Seek reliable corroboration. Verify sources of information. And do not just verify them, rank them according to how often they have been right or wrong in the past. I am still occasionally fooled, as we all are, but rarely.

It seems to me that this is precisely the sort of education that should be introduced into our primary schools. Children who are taught from an early age how to distinguish between online content that is genuinely useful and content that is inaccurate and misleading will not grow into adults who believe everything they see on TikTok.

Perhaps we should give Musk the last word: he would like that. Starmer, he declared, was “the greatest threat to free speech in the UK.” No, Elon, he isn’t. The greatest threat to the right to free speech comes not from those who seek to curb it, but from those who give them ammunition by abusing it. Take a look in the mirror.

• Ross Anderson is associate editor of Arab News.