Prosecution and the art of social media writing: reflections on McAlpine v Bercow

Today, the High Court ruled that Sally Bercow had defamed Lord McAlpine through a tweet, which could be understand to accuse him of sexually abusing boys in care.

It follows that, for these reasons, I find that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. (Paragraph 90)

In the judgement at paragraph 83, the judge ruled that by including his title “Lord” it identified the defendant who was, until then, out of the public eye and relatively unknown.  The tweet was defamatory because of its content and that it identified the claimant. The case is not going to be appealed so no firm legal conclusions can be drawn. What the case does highlight, though, is the danger of writing publicly about private events or allegations that can affect a person’s reputation.[1]  The law of defamation, developed in an age before social media, can be applied to comments made on social media sites like Twitter.  While experts will debate the legal issues, I will focus on the political philosophical consequences for writing and “speech” in the social media age.

Persecution and the art of writing

In considering the issues raised by this case and its possible effect on Twitter, I was reminded of Leo Strauss and his work on esoteric writing. In his book, which you can read online, Persecution and the Art of Writing (PAW), Strauss argued that ancient writers had pursued a writing style to mask their teachings within their works. They wrote esoterically to avoid being persecuted by religious or political authorities.  The authorities would find their writings dangerous because it could undermine the official teachings either political or religious.  The writers were mainly philosophers who sought to understand the good even if that understanding conflicted with what society had claimed to be the good. For example, a writer may discuss equality in an age of extreme inequality and thus stand outside or against the official teachings or political beliefs of the time.  In their work, the philosophers were trying to find the truth, who would have thought 300 years ago that all men are created equal, without letting the truth undermine the political regime.  A regime built on inequality and inherited property rights would find it threatening to have subjects openly and actively discussing political and economic equality.

What the philosophers did to overcome the potential threat by the state was to write in a particular style.  The style would convey an exoteric (outer) teaching, which followed the orthodoxy of the day. The writing would also have an esoteric (inner) teaching.  However, the texts were not written for two audiences, the public and the elites, but rather for a small audience.  The smaller audience would be aware of and sensitive to the esoteric teaching being conveyed.  As such, it is not a secret teaching, but rather a way of writing that conveyed a teaching or meaning.  At the same time, this was writing by philosophers for other philosophers or those sensitive to philosophy.  The writing was not a call to action or political agitation in the strict sense.  The philosopher would not have a covert discussion for overthrowing the regime because he was interested in understanding the good and that understanding would be the threat.  To be sure, political acts may occur because of that philosophical understanding being translated into political language.

So what does this have to do with Twitter?

The issue before us today is whether social media monitoring and the subsequent threat of legal action or arrest for comment on social media can curtain our speech and writing.[2]  If everything you write online can be tracked and traced, open or free speech is endangered.  One way to react would be to consider that what you write could lead to you being persecuted or prosecuted.  As a result, you would need to write in such a way as to avoid persecution or prosecution yet convey your meaning to others who might understand what you are trying to say. For an interesting take on this issue, with regard to twitter, consider this essay by Amanda Achtman. My goal is not so much to provide a guide to writing esoterically through social media, as to provide some thoughts on how writing may change because of social media.

Do we have free speech on the internet?

We may believe we have a new age of free speech and openness because of social media. Yet, that belief is flawed[3]. Social media reveals the underlying political structures within society. Technology makes the implicit political control within society explicit.  In a society, that now monitors public expressions unlike any before; we need to reconsider what it means to write publicly. To write effectively today, we need to find language and arguments that allow us to communicate with each other without revealing to those who would disapprove.[4]  I do not mean speaking in code. Instead, I mean recovering the political philosophical understanding needed to make arguments about the good, about democracy, and about freedom.  Through our writing, we continue the search for the best political order. However, the McAlpine v. Bercow case reveals is that social media society has an implicit, perhaps explicit ethos, which threatens to subsume, reasoned discussion of the political good.

Is social media revealing more than we care to know about human nature?

Without some restraint, society simply succumbs to its basest passions. In this world, the mantras become “if you have it flaunt it” and “if you have nothing to hide, you do not need privacy”. Such socialization, though, reduces our understanding of true friendship, debases us persons and corrodes our ability to think. The constant barrage of social media opinion drowns out the private study of religion or philosophy. In such a society, we, especially the young, face the danger of relying upon a public affirmation of their worth. (See PAW p.22 fn2)  When we believe our worth is predominantly determined by society we become dependent upon it.  Where does our identity, our reputation, derive its legitimacy?  In an age where our private thoughts are made public through choice or by discovery, our reputations seem to be under constant threat. In such a system, only those who refuse to take part seem able to maintain the perspective of an individual, or an association, that stands part of, but apart from, the group. The thinkers who are able to resist the dominant messages, the promoted messages, become rare.  Our thoughts tend to follow the common understanding so that we become followers happy to repeat what has been said rather than understand it for ourselves.  Despite this threat, we know of a different world.

Are we losing the freedom to think critically about what is the best way to live?

We know what it means to think critically. We know of an age and a time when we were free to check the arguments, motives, and intent of political speakers.  If we are to keep our freedom, our dignity, our humanity, we need to rekindle our capacity for thought and reflection.  We need to renew our ability to stand alone with our thoughts, with what makes us human, and share that with each other. If we do not have the space to think critically of the good or of our political leaders, how are we to find the space to be human?  We may believe the Twitter case is a spat between two powerful people seeking political advantage. Yet, such a belief would reveal the paucity of our education, our ability to think critically and deeply about what effects our society.  Perhaps it is time to reconsider how we are educated so that we can educate our children, and ourselves, to determine whether this is the best way to live.

[1] If a statement is to be determined as defamatory, the court has to decide. The claims are not resolved, usually, between the parties though a quick apology usually resolves such incidents in the everyday world. As a result, such claims are usually brought by people with the resources to get to court.

[2] My focus is on the legal system because it is an overt use of the political process to curtail or punish speech.  The focus is no security services using social media to track potential dissidents, unrest, or crime. In many ways, social media simply accelerates the methods and techniques that previously existed. The police officer walking the beat and talking with shop owners, homeowners, and citizens is similar.  What we see is technology revealing the underlying political reality of state power. Please note that surveillance is different because it is directed. Monitoring is general information gathering. If the security services focus their attention because of the gathering, then it becomes surveillance. For an assessment of the surveillance state consider

[3] I do not mean that speech is free of consequences as libel and defamation cases can be brought. What social media does, though, is need the law to be adapted to the technology, which also reflects the culture of social media.

[4] The focus is on discussing the good of society and what society means by the good. The discussion is about the common good and how the common good understands the philosophical good. The focus of this argument is not on private good, such as criminals discussing their crimes or the predators discussing or sharing access to victims. They are pursuing a private “good” and it is not good in the philosophic or political sense.

About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
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2 Responses to Prosecution and the art of social media writing: reflections on McAlpine v Bercow

  1. Anomalous says:

    Very interesting. As I stated to the press when discussing my claims, I earnestly hoped that it would make people think before they used the internet to harm others reputations without thought for the consequences. The Bercow Judgment will make people think carefully before they tweet what maybe injurious to another without good reason. The problem is that Social Media allows every individual to become a publisher and so few of them are qualified to know what may hurt someone else unfairly. When employers use the internet to enquire about any new prospective employee, they unearth all manner of material that may be false, defamatory or outright malicious. That is precisely what happened to me, happened to McAlpine and could happen to you next. I acted as the Good Samaritan to help people who’d been the victim of a terrible financial crime. The people that followed me recovered most of their losses. The people who didn’t, attacked me (because they made a bad decision) and they attacked me, damaging my reputation forever in the process, when I was innocent of any wrong doing. I would never advise anyone to act as a Good Samaritan ever again. You cannot trust anyone in the end except yourself and be true to yourself. Even the Judiciary are not above making mistakes and then covering up their injustices in a shameful way.

    • Thanks for the comment. I appreciate what you are saying about everyone being a publisher without understanding the risks. In time, I wonder if social media will become like the press or whether the law will change regarding the level required to initiate legal action.

      As people get used to it and the courts catch up, it becomes something entirely different when we can all hear or read each others private thoughts. Imagine if these comments were said on the bus or in the pub in passing. Would the courts entertain such lawsuits? Would parliament, or a legislature, accept such a use of the law?

      Whatever the outcome, how we talk to each other and about each other is changing dramatically.
      Thanks again for a stimulating comment. Good luck with rebuilding your reputation.

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