It caused a strong reaction
WeAreFairCop on the hearing day 2 – the whole thing is fascinating (and heroic work; well done to WAFC); I’ll just dive in at point x to give a sample. It’s shorthandy because done at speed. Counsel for P=for the Police.
Counsel for P – it caused a strong reaction – Judge – to ONE person. We have looked at the evidence. Reference to other people being upset. People don’t have the right to go through life not being upset.
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Counsel for P – I accept that but police have duty to engage with community and duties under EA Judge – I am afraid you will have to give me a specific reference to where it says police role is to act in community mediation …give me the reference please
Team Cop lawyer says Harry’s naughty tweet caused a strong reaction, the Judge says “to ONE person” – which is like what we’ve been talking about in regard to Oxford Brookes. One worked-up complaint about the sharing of two tweets, and that was all it took. What is the source of and reason for this instantaneous veto? People don’t have the right to go through life not being upset. Team Cop lawyer says yes, I get that, but police have a duty to engage with the community. (Which community, would be my first question. Why isn’t Harry the community? Why aren’t women? Why can’t women call the cops when people call them “TERFs”?) The judge says you have to show me where it says police role is to act in community mediation.
Judge – ‘have due regard to the need to’… yup Counsel for P – due regard to need to foster good relations… Judge just a second – reads – doesn’t say anything there about acting as community mediation service
<nearby snicker>
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Counsel for P – can I assist further Judge – No. no.
Snicker
Counsel for P[olice] – can be no dispute that recording was in line with the guidance bearing in mind the complaint. looking at definition of non crime incident which is perceived by victim or another as motivated by hate.
What about when women perceive being called “TERFs” as motivated by hate? Can we call the P then? What if Harry perceived the complaint as being motivated by hate?
Judge – phobia is a particularly strong word. What do you say it means? Counsel for P – its almost irrelevant what it means
<wow>
Wow indeed. We can tell Counsel for P, from years of experience, that it’s not irrelevant at all. Years of being accused of “transphobia” because we don’t believe lies=meaning of phobia not irrelevant.
Judge – if I find impact of PC Gul’s behaviour was to stop behaviour, that is classic example of state interference. Intention doesn’t matter.
Counsel for P – we know that wasn’t outcome as he continued tweeting
Judge – I take point, not conviction or fine etc.
Someone (it’s not clear who) mentioned a chilling effect.
Judge – what point are you making?
Counsel for P – chilling effect can only follow a sanction
What?!
Counsel for P – no definition in law
Judge – its US Supreme Court jurisprudence from 1950s. Accept no sanction in classic sense, accept all of that. but H[arryM[iller] Counsel says ‘take a step back. Look what happened. Threat of proceedings. All together has chilling effect’.
Fascinating that it’s from US Supreme Court jurisprudence – I’ll guess in the wake of McCarthyism.
Anyway that’s a sample. I find it fascinating, 5 stars, highly recommended. The judge is now considering, hopes to have a ruling before Xmas. Andy Lewis sums up:
The @WeAreFairCop Judicial Review currently underway is huge. Can police guidelines on following up accusations of ‘hate’ be seen as interfering with Article 10 rights? Can women describe themselves as adult human females without gender activists using the police as a weapon?
Can the law compel us to submit to a lie?
They have to duck the question because if they define “transphobia” it becomes clear that it’s a strong word being used for a weak concept.
When I watched that YouTube video Nullius linked to a while back I was struck by the example of ‘transphobia ‘ the pop philosopher gave, the one where YerDad said something to the effect of “I think trans people should do whatever they want, identity how they want, be called what they want — live and let live.” This was supposed to be phobic. YerDad was implicitly assuming that trans people really weren’t the gender they said they were. Not “mistaken.” Not “wrong.” But part of a phobia, an extreme or irrational fear, hatred, or aversion. A psychological pathology.
That’s one of the times I went “wow.” Great example.
Talk about concept creep…
It certainly did in the case of Maria Maclachlan when the judge hearing the case in her assault forced her to refer to the guilty party as “she”, even though he’s male. Presumably under threat of some kind of court punishment under the UK’s gender laws.
All else notwithstanding, one has to admire the nerve of a lawyer who will tell a judge in all seriousness that the definition of a word – one that is rather central to the case, no less – is almost irrelevant. I’d love to see him try the same with ‘murder’ or ‘guilty’.
@Sastra: That was the part that flipped me. It’s recasting tolerance as bigotry, such that there can be no acceptable response save total acquiescence and submission. That feels waaaaay too close to a fundamentalist religion for me. Nonbelievers in theistic religions are still getting enough shit that there’s no way I’m submitting to a secular cult.
No, don’t you get it? Tolerance is identifying as bigotry. Or, is bigotry identifying as tolerance? Bigorance? Toletry? Oh, boy, this can give you a headache.
By the way, Ophelia, I checked and your intuition was correct — the U.S. cases that began talking about chilling effects generally relate to anti-Communism efforts. The first mention is in a case regarding loyalty oaths, and later references come in cases regarding, e.g. a requirement that people who want to receive Communist literature through the mail “register” with the post office.
The Court has actually talked about (at least) two different types of chilling effects. One involves laws that don’t provide sufficient clarity about what is deemed legal versus illegal speech: if you can’t reasonably tell where the line is between protected and unprotected speech, then rational cautious citizens will start to avoid any speech that might be close to the line, which in turn means that the law will have the effect of “chilling” speech that is actually protected.
The other context — and the one apparently being directly referenced in these proceedings — involves laws that don’t necessarily punish legal speech. Like the requirement to file a document with the post office that says “I would like to receive Communist writings through the mail” — that isn’t a punishment strictly speaking, but a reasonable citizen (especially in Cold War America) would reasonable interpret that as exposing oneself to scrutiny from the FBI, getting on “the list” for the next, more draconian law, etc. It sounds like here, the police lawyer was trying to claim that there’s no chilling effect if you’re not actually charged with anything, and that the judge was skeptical on the very good grounds that having constables interrogate you about your social media posts is damned likely to chill most people’s speech.
Screechy, similar to what happens in our office sometimes. The associate dean finds out someone is a member of the union and comes around to say “I didn’t know you were a member of the union. Are you sure that is a good idea?” No legal action is taken, the employee is not (and legally cannot be) reprimanded or censured, but boy, oh boy, is that chilling.
Like when my boss told me “I wouldn’t want to have to replace you” after I agreed to be faculty advisor for the newly formed freethought club on campus.