Liam Mullone on the laws that let the gut rule...

As a friend of reason and, I hope, Dave Cohen, my instinct on his perfectly well-reasoned Correspondents’ piece was to let it lie. The thing is, after all, out of the news until someone else wears an inappropriate T-shirt or has another unpopular opinion online. If I wanted an interminable back and forth that ends with invocations of Nazi Germany I’d go back to the Chortle forums.

However I can’t help thinking that, in recognising what constitutes an ‘offensive’ joke or statement he’s confusing his apples with his shitting rapey paedo oranges. The ‘line’ that used to stop at disrespecting a vicar and has since been pushed all the way back to laughing at Katie Price’s son is a line of social acceptability.

It’s a flexible, invisible, rubbery thing, but everyone who is passably good at comedy knows roughly where it is. So we don’t, as comics, do racist material because it’s so far beyond the line (or the pale, indeed) that we would have a pretty thin time of it up there. And because we’re evolved, and nice, and not racist of course. But mostly we don’t do it because we wouldn’t get any laughs.

If misogyny or paedophilia still lie in front of the line, then that’s just where they are, and we know this. The position of the line gets tested a thousand times, every night, by comedians bouncing off it or daring to stick an arm across. Saying that rape jokes SHOULD be as unacceptable as racism is all very well. Perhaps they should. We can all be bigger men and women by not doing them. But the line remains where it is, and so other people will do this stuff and be backslapped for it, especially if they’re in a Jongleurs.

The point is that the stern reprove of liberal consensus that keeps most of us behind that line is not the same thing as the law. In On Liberty (1859) John Stuart Mill argued that, if society cannot guarantee and defend the rights of expression for its most reviled citizens – the firebrands, The Heretic and the perverts – then it could not guarantee the rights of anyone at all.

Those who offended public opinion must not only have the protection of the law but, by so doing, would prove the very worth of the law they lived under. At a time when the law served only the interests of those with property, most thought Mill was unhinged. But we have since come to see what a visionary he was. The law is not – CANNOT BE – the vapid whim of the majority, reacting to its every sense of outrage. We came to respect the law in Britain because it became, gradually, that dispassionate, disinterested leviathan that Mill wished it to be.

So I can, if I wish, step on a stage and say something racist. The law, as it applies to the spoken word, only forbids me from saying things that incite violence or enflame hatred, and it must prove beyond reasonable doubt that this was my intention.

There’s a bit I sometimes do (if I’m feeling brave) where I talk about what a great thing slavery was. The point is that the argument is so appalling that it can’t be taken seriously. But what if someone were to take it seriously? How do we legislate for the millions of people who don’t catch inflections, or come from cultures without our lode of sarcasm, or who just don’t get irony, or whose chip is so great that this subject just isn’t funny to them, from any perspective?

Any comedian with something important to say will be misconstrued at some point. Remember the white, waspy people in Mel Brooks’a The Producers who walk out at the beginning of‘Springtime For Hitler - although in this case they’re the silly few who take the offence that’s offered, at least partly on behalf of Jewish people like Max Bialystock.

In this instance I’m fairly safe. It’s not (yet) easy to bring a suit based on what is said or acted out on stage. I can even write it down. Publish it on a good old-fashioned press, if I’m vain enough. But if I record my difficult joke and put it as a clip on YouTube, then I fall under the guns of the Communications Act (2003), section 127, which invites anyone who feels ‘insulted’ by anything they find online to make a case out of it.

The joke doesn’t even have to be about them, or concern them, or name them. Everyone is entitled, by the sheer bagginess of this law, to feel offended and seek retribution. What if what I meant as parody gets taken seriously?

As in the Mike Sheer incident, I generally find that it’s white, liberal, middle class people who miss the sly wink and get upset on behalf of all those ‘disempowered’ people Dave has name-checked– the poor, the disabled, the depressed, the unhappy, the unhygienic, the working class, the state-schooled, the bi-curious, the retired greyhounds, the women, the Welsh (am I being offensive now or just facetious? It’s online so feel free to take it all the way).

As we all know, it’s a lot easier to take offence online. A clip will lose its context. A facial expression will turn to blotched mosaic when you squash your film down to mpeg size. Irony evaporates.

This is not a law that recognises nuance. It leaves it to the judge to divine the intention of the accused, and I challenge anyone to make what was funny at the time seem funny in a court of law. All that is required to bring a case is that someone feel insulted. From that point on the onus, and the worry, and the expense, is on you, the online comedian.

These laws were passed in the summer of Blair’s reign, by a Cabinet that was arguably more interested in using the law as a tool of social engineering than in using it to protect us.

With its slew of catch-all acts against hate speech, menaces, nuisance and bad words it was a Government determined to push Dave’s line back by brute force. But the Acts of Parliament that gave us these laws, lying like duds for years, were actually time bombs. They left it to judges to interpret, and they are now beginning to interpret them to the full extent of their blunt, bludgeon-headed clumsiness.

Every time this happens, a judge sets precedent by which all further cases must proceed. And so the screws tighten. Cameron’s Government, which promised faithfully to roll back Labour’s woolly statutes, has done nothing of the sort.

We all feel, in our gut, that evil little turds like Matthew Woods should be punished. In my gut I feel that people who don’t pick up their dog’s shit should be forced to eat it at gunpoint, but then I remind myself what kind of world that would be.

Sadly we now live in a country where everyone’s listening to their gut, and the Government is listening to our guts and the judges are deep in the acid gut of the Government. The line of being a reasoning grown-up about hearing things we don’t like has been pushed so far back it’s falling into Voltaire’s grave.

As creative people, that is the only line we need to worry about. I would urge everyone who cares about free expression to campaign for the abolition of section 127.

Published: 16 Oct 2012