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Sunday, 12 February 2012

The "TwitterJokeTrial" - guest post by Fiona Hanley

This is a guest post by my Dublin-based friend, the art director and graphic designer Fiona Hanley.


If it were not for the post 9/11 security climate then Paul Chambers may never have tweeted what he did.

Frustrated at not being able to travel, his was perhaps a minor light-hearted act of rebellion at the expense of a necessarily paranoid security system which assumes travellers are guilty until proven innocent.

We must decant cosmetics and hand over belts, coats and shoes. If told to stand aside, we hold out our arms, part our legs and consent to getting patted down by a stranger in front of strangers or consent to the same for our children until security is satisfied that we pose no threat.

Not much fun really, but the general consensus is that in this exceptional instance public good trumps individual civil liberty.


Paul Chambers’ tweet was a direct riff on this.

Of course it was a joke.

Who knew? Everybody.

The police knew it was a joke, the airport knew it was a joke, the courts knew and Twitter knew.

Yet he and his counsel are placed in the ludicrous position of trying to convince the courts that it was a joke which posed no threat to anyone while the courts are in the ludicrous position of forensically examining said joke to measure out the exact nature and potential for misinterpretation.

Never in the two years of this well-documented case has anybody said that they didn’t know it was a joke.

In my opinion, only someone with a condition like Autism Spectrum Disorder would be threatened by that tweet. A difficulty interpreting words any way other than literally, without regard to tone, context or sarcasm is a classic and debilitating trait of ASD.


But somebody decided Chambers broke the law and so the logic of the tweet has been forensically examined: how does threatening to blow up a closed airport make it open any quicker?

Why would a genuine terrorist send an open tweet from his non-anonymous account?

But really, there should be no need for any of that.

There should be no need to ‘prove’ it was a joke.

Everyone just instinctively, instantly, intuitively knew. How? We just did.


How do we know Beethoven’s Seventh is beautiful? We just do.

How do we know The Cure’s Lovecats is pretty catchy? We just do.

These are subjective value judgements which are so commonplace, so easily and universally understood that they require no explanation or justification.

Imagine in some bizarre alternate universe having to stand before a judge and explain exactly why the Seventh Symphony is beautiful.

Imagine if this masterpiece was legally deemed to be not beautiful if one was unable to sufficiently convince the courts of its quality.

It is the stuff of metaphysics.

Of course Beethoven or The Cure mightn’t be everyone’s thing and that’s fine, it’s all subjective, but you can see what other people are on about.

You mightn’t find Chambers’ joke particularly funny, it was no comic masterpiece, but you knew nonetheless it was a joke.

Following the progress of the Twitter Joke trial on Wednesday was frustrating because it felt like the intrinsic human capacity for subjectivity itself was being put on trial by a legal system which is apparently only equipped to deal in the objective.


In Zen and the Art of Motorcycle Maintenence the narrator Phaedrus becomes preoccupied with the philosophical examination of the nature of quality.

Throughout a motorcycle journey with his young son he muses obsessively on an examination of how and why people make subjective value judgements. It is a fantastic read, profound and powerful, but throughout the novel I kept rooting for the tormented hero to just relax and accept that sometimes we just know stuff without needing to know how we know. I’m sure Paul, David and the rest of the legal team could sympathise with unlucky Phaedrus whose analytical reflections eventually drive him insane.


Carl Gardner wrote an excellent blog post following the hearing.

It seems the mens rea argument, ie that for a crime to take place there needs to be intention to commit the crime, didn’t gain traction with the judges.

I’m confused as to why it wouldn’t be taken as a given that there was no mens rea.

Personally I’m even confused about the actus reus aspect of the case, ie that a crime took place at all.

Did a crime take place if no one took it seriously, if no one felt menaced by the tweet, if no neurotypical person could reasonably not know it was a joke.

I tweeted something about being confused by the prosecution’s logic.

Actually hands up, I wasn’t really confused, just sarcastic because hey, let’s make hay.

We may only have a week and a bit left to be sarcastic on Twitter before Justice blows sarcasm sky high.

Oh hang on wait, that’s sarcasm again.

Better scratch that last bit.

We can’t be too careful these days.


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18 comments:

Al said...

"he muses obsessively on an examination of how and why people make subjective value judgements. It is a fantastic read"
No it isn't, etc.

Maria Wolters said...

I agree with Fiona's general argument, but I think mentioning people on the autistic spectrum is a red herring.

We "just know" that Paul's tweet was indeed meant to be a joke is because it adheres to widely-shared culture-specific conventions of comedy that AJ Murray explains in his post in the Guardian, and because we are prepared to interpret it in the context of Paul's timeline and the kind of person that his timeline projects.

And this is exactly how it should be - it's the appropriate context for evaluating the intention behind the tweet.

But for some people, some subjects are just exempt from the normal rules of comedy or interpretation - this is what might be happening here.

What I find frightening is the idea that everybody on Twitter would have to self-censor themselves in order to make sure nobody was ever, albeit unintentionally, offended, threatened, or menaced.

(For what it's worth, high-functioning people with Autistic Spectrum Disorder will probably get Paul's joke - they need to spend so much time deciphering the rules of social interaction that they are aware of many rules that us neurotypical folk never notice.)

Mike Hypercube said...

Good analysis. In the light of this, here's what srikes me as curious about this case: because everyone concerned knew it was a joke, no-one appears to have carried out the thought experiment of "What if I were to interpret this literally?". If they had, they would have discovered that there was a threat against the airport if and only if it remained closed a week and a bit hence. This was not, if taken literally, a present and credible threat, but a week-and-a-bit hence and (in England's climate) not very credible threat.

The fact that no-one has carried out this autistic-spectrum analysis of the actual tweet makes it very clear that the case is not proceeding on the basis of the threat implicit in the wording of the tweet. So on what basis is it proceeding?

vjohn82 said...

Interesting take on the case.

I'm concerned that you are comparing subjectivity with objectivity with the Beethoven analogy; music is not objectively "beautiful". It is, as they say, "in the eyes of the beholder". I agree people may respect a person's right to hold a subjective view of music.

The question for me is whether an objective observer would find that Paul's tweet was objectively menacing. I'm not sure that his tweet passes this threshold; indeed the airport's own security did not think it passed the threshold otherwise a different response would have been given.

That the CPS arrived at a different decision, and then the court's, demonstrates to me that there is something quite amiss. As far as I know, no-one has been imprisoned for breaching any of the so called "super injunctions"? It could well be the authorities wanted to make an example of Paul and his use of twitter to send a message to people about how they conduct themselves online.

My view is that the courts have picked the wrong test case to make such an example. A far better one has arrived with the arrest of Michael Convery who has recently been arrested for allegedly writing racist tweets to two Glasgow Rangers footballers.

As I say, I think there was an example that needed to be made and Paul was an "easy" target to some extent.

The only question now is how the court handles the vast number of people who 're-tweeted' the message which is argued to be 'menacing'? Will we see a raft of prosecutions should Paul's appeal fail?

The whole affair seems counter-productive to the idea of proportionality that should be tested before expensive proceedings are entered into.

Jennie said...

And, of course, no post about a legal problem would be complete without a dig at the non-neurotypical people. It's a shame, because the overall thrust of the post is one I could agree with.

FYI: autism does not mean you have no sense of humour. Just like being neurotypical doesn't mean you have the sense not to make sweeping generalisations.

Fergus O'Neill said...

Paul Chambers has of course been made an example of. Unfortunately (very unfortunate for Paul) it was an example that had to be made. Subscribers to any online content distribution need to be reminded of the contract they undertook with the service. Twitters 'Terms of Service' are explicit and clear: https://twitter.com/tos Users do need to be reminded their content is published and the normal strictures of such are complied with.
...on a different note: vjohn82 raises an interesting point about the prosecution of re-tweeters. By quoting a tweet and adding your own comment without validating it as statement or opinion would of course leave you as exposed as Paul Chambers. So to explore that further, if all of the individuals that supported Paul by also claiming to bomb Robin Hood airport were to make themselves available for arrest at the same time for the same offence in the same place it would throw at the very least the idea of proportionality into contrast. I think the ANC explored this with the pass book protest... which resulted in the Sharpeville massacre...

Fiona Hanley said...

Jennie, I'm not any kind of legal expert but I do have a significant degree of experience with people on the autistic spectrum. I'm sorry you thought I was making a dig. ASD is a broad spectrum. Not all people with Asperger's Syndrome interpret language literally but nevertheless it is one of the classic traits. This is simply a statement of fact and was in no was intended to be derogatory.

Mephisto said...

That movement of Phaedrus into insanity sounds interesting!!

Insanity itself might well be the upper limit of all value judgements. Could it not also be that Phaedrus was consumed by a truth that it was simply impossible for his milieu to understand?

I'm thinking of someone like Kurt Schwitters - and your question with regard to values and Art.

Of course the Nazis tried this very experiment. Their obscene exhibition of so called 'Degenerate Art' was an explicit attempt to stigmatise (objectively) an entire aesthetic world as fundamentally Untrue and Unreasonable: Mad.

Of course we now recognise a work like Schwitters' Ursonate as a great cultural icon (rightly so); and yet its proximity to Delirium is unmistakable. Were it not for the context we safley call Art, what might have been the judgement passed down upon Schwitters (even today)? (And a hero of mine!!)

The question of these subjective values, as opposing an objective 'truth' has become so desperately sad. On the one hand we have Scientific truth routinely asking the "merely" subjective to somehow justify itself against the judgement of illusion (Sky Fairies - Hocus Pocus etc etc), and on the other we get the proponents of Subjective values accusing others of sterility, fascism and indeed their own illusions: the impossible conundrums of epistomolgy: Nature and Mind.

It is just so terribly divisive and unnecessary.

I think it was Latour's great observation (?): the objective and the subjective were never *designed* to meet!! Designed not by god - but by humankind - by the very nature of our practices. The practice of Science constructs/discovers the objective fact, the practice of the arts (and religion) constructs/discovers the subjective values. No practice authorises a Truth by which the others can be judged. Both are 'made' every bit as much 'discovered'. Beautiful I think.

A long winded way to try and talk about a tweet!!

But I wonder if what disconcerts a certain section of authority about the internet is the fear that they are losing their own grip upon an *authorised* truth.

Like so much of this anti-terror narrative that encompasses us, we are confronted by Laws that are being used as a pretext to confirm a particular version of reality.

It is as though without such an authorised version (quite apart from the Power it enshrines) we might all fall into disarray (insanity again!); but of course by and large we don't. we talk, we argue and then, finally, we construct.

Radoveden said...

Just a question. Should it be helpfull we retweeted the exact text massively? It is little effort many people are prepared to do to work this stupidity off the world, I guess.

Fergus O'Neill said...

Paul Chambers has of course been made an example of. Unfortunately (very unfortunate for Paul) it was an example that had to be made. Subscribers to any online content distribution need to be reminded of the contract they undertook with the service. Twitters 'Terms of Service' are explicit and clear: https://twitter.com/tos Users do need to be reminded their content is published and the normal strictures of such are complied with.
...on a different note: vjohn82 raises an interesting point about the prosecution of re-tweeters. By quoting a tweet and adding your own comment without validating it as statement or opinion would of course leave you as exposed as Paul Chambers. So to explore that further, if all of the individuals that supported Paul by also claiming to bomb Robin Hood airport were to make themselves available for arrest at the same time for the same offence in the same place it would throw at the very least the idea of proportionality into contrast. I think the ANC explored this with the pass book protest... which resulted in the Sharpeville massacre...

Jennie said...

If we're going to do one-upmanship on the appeals to authority, I, my daughter, two of my nephews and several of my friends are on the spectrum. I'm not saying that you would ever word it this crudely, but what you wrote reads like "people with ASD are too stupid to spot a joke". A tendency to interpret things literally does not mean that, and I fully believe that isn't what you intended to say. I'd just like to see more care taken with hurtful language in general, and your post happened to come up on my feed as I was in righteous indignation mode.

Anyway, I think I've done enough derailing now, so...

Acleron said...

It used to be said ' To a [enter your favourite nationality]a joke is no laughing matter. Seems that the law is an ass but cannot laugh.

vjohn82 said...

"Radoveden said...
Just a question. Should it be helpfull we retweeted the exact text massively? It is little effort many people are prepared to do to work this stupidity off the world, I guess."

In the current circumstances this might be a little silly seeing as the courts have presently decided that such a tweet meets the criteria of prosecution (albeit now under appeal).

My suspicion was that Paul could have at least, and I think he did, offer the view that he was no aware that the tweet was offensive or indeed menacing. Indeed Robin Hood airport security did not find that it met the criteria of a "credible" threat.

In light of the present circumstances, to send such a tweet, in full awareness of its present standing in the court, offers a person no defence (if ignorance of the law was ever a defence at all).

That said, I have read that around 30 to 40 thousand people have already done so. Unless the CPS has a massive appetite for prosecuting everyone, which they could certainly do should the appeal be rejected, then I think you should tweet away.

I'm not a qualified lawyer; David might give you a different view.

Dr Evil said...

I hope it's before a jury. Also, perhaps counsel should show the court the dictionary definition of hyperbole? This case should never, ever have been prosecuted. It is insane!

Bob said...

Unfortunately, there are plenty of people who think Paul was correctly convicted and fully deserved it. These people usually don't understand twitter at all, they usually are under the mistaken impression that he essentially made a bomb hoax to an airport via twitter then said it was only a joke. This is of course not the case at all, but that hasn't stopped far too many people thinking it. Unfortunately it sounds as though the judge who heard Paul's Crown Court appeal hearing may fit in this category.

If upheld, Paul's conviction will demonstrate that under English law, any piece of text that may be found in a search may be plucked out of any surrounding context, passed upwards through an unbroken chain of joyless jobsworth automatons, till it reaches a court who will decide whether an imaginary hypothetical elderly person might possibly find it offensive or menacing irrespective of whether it was intended as such. In theory this might even mean bits of fiction, in which something menacing fictionally happens, could be found via a search, misinterpreted by a buffoon and cause someone to be convicted under the same act.

Meanwhile, Darren Barton, who posted deliberately offensive messages to RIP pages and was 'outed' by BBC's Panorama - http://youtu.be/1kFNYuteAjA -, has (so far as I can tell) not been arrested or charged with anything at all. Isn't this the sort of thing this communications act ought to be used for? Aren't his messages offensive, and deliberately so?

David J Mudkips said...

@Bob - Cardinal Richelieu may or may not have said "Give me six lines in an honest man's hand and I will find a reason to hang him", but the sentiment stands.

Every single one of us says/does things that some might find objectionable, but that's their problem, not ours. Free Speech is a basic Human Right, Protection From Butthurt is not.

During the appeal, one if the most worrying points of discussion was whether people had "a right not to be offended". The fact that the concept us even being mentioned is farcical! The Religious and Racial Hatred act actually had Section 29j (enshrining parody/humour/etc as allowable) put in to prevent people with an agenda abusing the RRH as a stick to beat their opponents with!

Oh, and +1 to the observation that the ASD comment was a cheap shot. Next time, try a genuinely humourless group, like Scientologists...

Herm said...

High functioning ASD here. +1 to cheap shot. Try looking at groups that are obliged to suppress their sense of humour for the sake of their jobs... which is more like what's going on here.

Anyway, to this Aspie the joke wasn't funny - I have a far more sophisticated sense of humour than that - but it is hard to see how it could have been other than a joke.

(And Zen and the Art of Motorcycle Maintenance was a terrible read.)

Fiona Hanley said...

I should have spoken more generally, and with qualification, whilst making the point about Asperger's Syndrome. 'Could' or 'could potentially' would have been more appropriate and accurate than 'would'. That was careless writing on my part and unfortunate given the sensitivity of the subject matter. It wasn't my intention to imply that people on the autistic spectrum don't have a sense of humor. They certainly do. My apologies.