I am Spartacus

The 1960 movie Spartacus (imdb | wikipedia) (dir: Stanley Kubrick; screenplay: Dalton Trumbo) tells the story of a slave rebellion against ancient Rome led by the title character, a Thracian gladiator, played by Kirk Douglas. When the rebellion is eventually crushed by an army led by the Roman general and politician Marcus Licinius Crassus, played by Laurence Olivier, the recaptured slaves are told that they will be spared crucifixion if they identify Spartacus. Instead, one after another, they each proclaim “I am Spartacus“. It is a famous scene of solidarity – all the more so since screenwriter Dalton Trumbo was one of the blacklisted Hollywood 10, and he was the first blacklisted writer to write a screenplay his own name again when he wrote the screenplay for Spartacus, based on the novel by another blacklisted writer, Howard Fast. Wikipedia reports that the “documentary Trumbo suggests that this scene was meant to dramatize the solidarity of those accused of being Communist sympathizers during the McCarthy Era who refused to implicate others, and thus were blacklisted”.

The phrase has been in the news recently because it has been taken up on twitter #IamSpartacus in solidarity with Paul Chambers (Guardian | Telegraph). He was concerned that he would miss a flight last January from Robin Hood Airport in Nottingham to Belfast due to bad weather, and tweeted

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!

He was fined £1,000 of sending a message of menacing character by means of a public electronic communications network contrary to section 127 of the Communications Act 2003; and his appeal was dismissed. The tweet was plainly a joke; the prosecution should never have been taken; it should have failed; and the appeal should have succeeded. It has become a cause célèbre on twitter #TwitterJokeTrial. And there is an excellent analysis of the legal issues by Matthew Flinn on the UK Human Rights Blog (reposted on Inforrm’s Blog):

Twitter joke trial: Do offensive tweeters have freedom of expression rights?

… Mr. Chambers is now taking his case on appeal to the High Court, and it will be interesting to see the extent of any discussion of his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), and whether or not the application of section 127 to Mr. Chambers’ case is compatible with that right. In DPP v Collins [2006] 1 WLR 2223 Lord Bingham said:

Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.

He therefore concluded that section 127(1), in itself, did not infringe Article 10.

It is possible that the High Court might view Lord Bingham’s conclusion as effectively shutting the door on most of the Article 10 objections that might be made to Mr. Chamber’s conviction. Nevertheless, there may yet be room for arguing that the Magistrates and subsequently the Crown Court breached his Article 10 rights because they should have interpreted the word “menacing”, or perhaps the mens rea requirement, in a more restrictive manner (such an interpretative approach, based on section 3 of the HRA 1998, was used in Connolly v DPP [2008] 1 WLR 276 by Dyson LJ (as he then was) in respect of section 1 of the Malicious Communications Act 1988). Yet it is also possible that the court would prefer to approach this issue simply as a challenge to the finding of fact that, in all the circumstances, Mr. Chambers’ Tweet was menacing. …

It is to be hoped that all of these issues will be given due consideration in the High Court. Irrespective of the merits (or lack thereof) of Mr. Chambers’ ill-fated tweet, the attention this case has received is amply justified. After all, as he House of Lords observed in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, freedom of expression is a right without “an effective rule of law is not possible”.

Update: David Allen Green (@davidallengreen), Chambers’ solicitor, blogging as Jack of Kent (@jackofkent), writes that the journey to the High Court has begun. He also points to a counterview to his by Jonathan Westwood (@cjwestwood) here (in The Lawyer) and here (a longer version on his own blog, from which this extract is taken):

A number of Twitter users seem to have forgotten that our actions carry consequences. The digital way of life many Twitterers have adopted is still not the norm for large swathes of society; even if it were, those digital lives are still governed by the same laws and standards as those that apply to more traditional, analogue existences. Statute is notoriously slow to change and our statute books are littered with Acts long past their sell-by date – but we still have to abide by those laws.

The law is regularly an ass, but while you may not like the law you have to live within its auspices unless and until you succeed in changing it. While there are troubling aspects to this affair, I am neither surprised nor particularly outraged about the facts at its root – namely, that someone who sent a tweet joking about blowing up an airport has been convicted of a public nuisance offence.

The law is the law. Campaign to change the law, by all means. But don’t try to appeal it on the grounds of “common sense” because, frankly (and as David Allen Green will surely confirm), the law is just about the last place you should look if you are seeking that particular commodity.

Bonus link: I am Brian from The Life of Brian via YouTube.