Donald Clarke: Do threats made on Twitter count as free speech?

Should we worry about Ashley Judd setting the cops on a bunch of Twitter-happy knuckleheads? There are certainly greater threats to the global community but, the price of freedom being eternal vigilance, we had best pay some attention to this depressing story.

It seems that the American actor, currently to be seen as Shailene Woodley's dead mum in Insurgent, angered the lower primates while watching a basketball game between some Kentucky university and another Arkansas institution.

Judd, a Kentucky fan, tweeted that she felt the Arkansas players were “playing dirty”. Her subsequent backtrack from that very mild comment shows how easily sensitivities are ruffled in US sport.

“In my impassioned game moment, I said something that, if I were in a more calm state of mind, I might have phrased differently,” she said. How quaint.

At this point in the story we move from the drawing room niceties of Henry James to the post-apocalyptic thuggery of Mad Max. Depressingly, we hardly need to say that supporters of the opposing team posted tweets calling Judd a "whore" and threatening her with sexual violence. The dynamic is so familiar it now plays like ancient myth.

What happened next was less familiar. In an interview on MSNBC, Judd suggested that she intended to press charges. Later on, she admitted that she did not expect the case to be vigorously pursued, but some sort of line has been drawn in the digital sand.

A survivor of rape and incest, Judd was arguing – not unreasonably – that the right to free speech does not extend to physical threats, however glibly made.

The story comes six months after a UK court sentenced one Peter Nunn to 18 weeks in prison for tweeting misogynistic filth at a Labour MP who ran a campaign to put Jane Austen on the £10 note.

It may seem pernickety to even raise the issue of free speech in such situations. A ghastly man behaved in a ghastly fashion and received fairly robust treatment from the courts. Violent misogyny has, for too long, been tolerated as an ambient bass track in the music of public discourse.

Constitutional lawyers in the US, however, say the First Amendment – which guarantees, among other things, freedom of speech – is of significance in these sorts of cases. Writing after the Nunn ruling, Danielle Citron, a professor of law at the University of Maryland, argued that the prosecution would probably not have succeeded in the United States. "We have a much higher standard in the US when it comes to what constitutes threatening speech," Citron explained.

In short, US courts, to secure a conviction, would require proof any such tweet is “a true threat”. That is, it must be specific, plausible and cause serious fear of harm. It’s not enough to say you’d “like to kill” somebody; you need to suggest serious, immediate intent.

Twitter option

No such quibbles about free speech need apply to Twitter (or to internet comments). The host has the right to reject any submitted post. In the instances mentioned above, erring on the side of caution and decency is probably the wisest option.

Just delete the post and ban the user. MadWonga543 will, no doubt, subsequently compare himself to Andrei Sakharov, but he (rarely she) has had no more human rights denied than has the aspiring novelist who receives a rejection slip.

Imprisoning people for saying nasty things is an altogether trickier business. Most of us would relish the idea of banging up Judd’s tormentors for a few months. The fear and depression that can result from such textual assaults deserves some retribution, does it not? Some sort of judicial deterrent seems reasonable. People go to jail for a great deal less.

All this is true. No, we shouldn’t worry very much about Ashley calling the cops. Good for her. But a degree of caution is appropriate when policing language. So, let’s worry just a tiny bit.