Communists and Nazis Have No Sense of Humour

In 1965 Milan Kundera wrote a dark satirical novel titled The Joke. The early portion of the book is set in 1950’s Czechoslovakia, which at the time was ruled by the Communist Party of Czechoslovakia (KSČ) after a coup d’état in 1948. The protagonist, Ludvik, is young, charismatic, and an enthusiastic supporter of the KSČ. One day he writes a postcard to a girl in his class who he has feelings for, but finds to be rather serious. The postcard playfully mocks the KSČ (“Long live Trotsky!”) but his joke is not appreciated. He finds himself reported to the authorities, and despite his repeated assertions that this was merely a joke he is expelled from the Party, and drafted into a military work brigade to do hard labour in the mines.

In 2011 documents were discovered by the German Foreign Office, which showed that, in 1941, the Nazi Party attempted to bring charges against a Finnish businessman following a witness report claiming that he had trained his dog to salute upon the command “Hitler”. This was viewed as a grave insult, and the Foreign Office spent three months pursuing ways of bringing the businessman to trial for insulting Hitler, including attempts to undermine his business. Fortunately for Mr Borg, they were unsuccessful, and the case was dropped.

A Pug Joins the Fourth Reich

In April 2016, Markus Meechan, known by his YouTube name “Count Dankula”, uploaded a video entitled “M8 Yer Dugs A Nazi”. At the start of the video he explains the set-up for the joke: his girlfriend thinks her pug (Buddha) is the cutest thing in the world. He thinks it would be funny to annoy her by turning the dog into the “least cute thing [he] can think of, which is a Nazi”. The video continues with Meechan saying “gas the Jews” to the pug repeatedly, in the same high-pitched tone with which one might say “let’s go walkies”. Eventually, Buddha even reacts merely to the word “Jews” whispered from across the room. Other clips in the video show the dog raising its paw in response to “Sieg Heil”, and sitting in front of a computer monitor watching a Hitler speech.

The video went moderately viral, garnering over 3 million views. Seventeen days later, Markus Meechan was arrested by the Police Service of Scotland “in relation to the alleged publication of offensive material online (improper use of electronic communications under the Communications Act 2003).” The trial would stretch out for two years, with multiple postponements, filibustering by the prosecution, and little media coverage.

Laws Against Saying Bad Words

The Communications Act of 2003 is a broadly ranging document largely dealing with TV and radio licensing, the function of internet companies, and consumer rights. Buried among the 411 sections is the relatively innocuous Section 127: Improper use of public electronic communications network. Subsection 1(a) of this states: “A person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive”.

The wording of this offence, particularly the term “grossly offensive”, might be generously considered vague. The test for what separates an offensive statement from being a grossly offensive one was defined in the 2006 case DPP v Collins, regarding a man leaving racist messages on the answerphone of his local MP. The answer is helpfully summarised on the website of the Crown Prosecution Service as “whether the message would cause gross offence to those to whom it relates.”

Looking further into the findings of the House of Lords regarding DPP v Collins, the closest thing to a clear definition separating “offensive” from “grossly offensive” is “messages which, in their particular circumstances and context, are to be regarded in the wider society which the justices represent as grossly offensive”. In short, it is at the discretion of the judge in question.

Another rather Kafkaesque revelation from the documents is the realisation that if two racists were to have a conversation in person involving derogatory racial slurs, this would not constitute an offence, yet if the conversation was carried out over the phone, it would. It seems that we must always consider the feelings of whoever else may be eavesdropping on the phone call.

Humorously, the document does end with another more troubling realisation. “Quite where that leaves telephone chat-lines, the very essence of which might be thought to involve the sending of indecent or obscene messages such as are also proscribed by section 127(1)(a) was not explored before your Lordships and can be left for another day.”

The Court Case in Question

On 19th March 2018, Meechan was found guilty of committing a hate crime, and being “grossly offensive” by Judge Derek O’Carroll of Airdrie Sheriff Court. He is awaiting sentencing on the 23rd of April, with a maximum jail sentence of six months. While it is likely he will not serve a custodial sentence, for many people the fact that he has been criminally prosecuted at all is very troubling.

Details of the court case were not covered by the mainstream media, with the only commentary coming from Meechan himself through his YouTube channel and Twitter account. While his take may be considered a biased testimony, it is the only source available. Furthermore, no-one else involved in the trial has publicly denied his statements. His description of events is also in keeping with what we commonly see in the functions of courts, and with the documentation surrounding CA 2003 127(1)(a).

The trial was a bench trial, meaning it was heard solely before a judge, without a jury present, which is normal for the kinds of minor cases the Sheriff’s Court hears. A central point described in the House of Lords’ findings on the Collins case discussed earlier, is that the communication must be intentionally offensive, or produced with the knowledge that it will cause “gross offence”. This boiled down to Judge O’Carroll being the sole arbiter of Meechan’s intentions. His assertions that the video was never intended to offend anyone, that Nazis were the butt of the joke, that the use of offensive phrases in contrast to the pug’s reaction was the entire point of the joke, were ignored. Kundera would be impressed.

Meechan also claims that he was denied free legal aid. Despite him qualifying for this means-tested privilege, he was asked to submit his girlfriend’s financial records, as they live together. In one account she had a lump sum of money; an inheritance from a relative that was conditional on its use as a deposit on a mortgage. The existence of money that neither belonged to him, nor was even available for use in this matter, was seen as justification to deny free legal aid, a right that has existed in Britain for over a century.

Accounts of testimony within the court were disconcerting. It emerged during the trial that despite the 3 million views of the video, not a single complaint was made to Police Scotland. The police themselves were behind bringing charges, and a key witness for the prosecution seems to be a member of Police Scotland’s Hate Crime Division, while Ephraim Borowski, director of the Scottish Council of Jewish Communities, gave an emotive-laden testimony of how the repeated use of the phrase “Gas the Jews” was the central concern of the trial. Speaking to the Telegraph he said, “Material of this kind goes to normalise the anti-Semitic views that frankly we thought we had seen the last of. The Holocaust is not a subject for jocular content.”

The arguments used by the prosecution included (according to Meechan) that his use of the pug in the video was merely a smokescreen to distract from his true intent, that being to spread anti-Semitic propaganda, and stir up racial hatred. In his final statements on the case Judge O’Carroll said, “In my view it is a reasonable conclusion that the video is grossly offensive. The description of the video as humorous is no magic wand. This court has taken the freedom of expression into consideration. But the right to freedom of expression also comes with responsibility.”

The Public (Doesn’t Really Have a) Reaction

The largest swell of support for Meechan was expected to be from professional comedians. In a case such as this, where a successful prosecution largely rested upon whether or not the judge would accept that the speech in question was intended as a joke, one would expect people who rely on being free to push boundaries and risk offence to take notice of the case. This didn’t happen. Ricky Gervais and prominent Jewish comedian David Baddiel both defended Meechan, noting that while the joke might be offensive, they happened to find it funny. Jonathan Pie, a satirical news-reader character created by Tom Walker, released an impassioned rant regarding the ludicrous nature of the trial, culminating in him goose-stepping in front of the court whilst giving a Hitler salute. He has since been referred to the Metropolitan Police.

Few politicians came out with a public opinion regarding the case. The Liberalists UK, a loose group of people interested in classical liberal ideas launched a letter writing campaign to MPs within the UK. As of writing this article they have received 33 responses so far, with only 14 in support of Meechan’s free speech rights (12 Conservatives, 1 Plaid Cymru, 1 DUP). All Labour MPs who have responded have agreed with the court’s findings, and given the recent controversy regarding alleged anti-Semitism within the Labour Party, this is unlikely to change. Even Amnesty International supported the findings of the court.

Much of the media condemnation of Meechan focused on his association with Tommy Robinson (founder and ex-leader of the English Defence League, an anti-Islamism street movement), Lauren Southern (a Canadian conservative-libertarian journalist recently banned for life from the UK), Alex Jones (a controversial radio show host and conspiracy theorist), and Katie Hopkins (a right-wing provocateur). Rather than seeing this as a condemnation of the mainstream media, supposed bastions of truth-seeking, for failing to ever give Meechan a platform to defend himself and explain his actions, he was dismissed for engaging with these alleged far-right/alt-right/white supremacists.

What’s Next?

Before coming to any conclusion on the validity of this court case, I would recommend to everyone that they watch the video in question first. It still exists on YouTube under the name given above, although in a restricted state, meaning it cannot be shared and is ineligible for advertising. This should assuage any concerns that Meechan will profit from further views.

Whether or not Meechan will serve a jail sentence is largely irrelevant in principle. The facts stand that the machinations of the state prosecution service were deployed against a British citizen for producing a video in which he used offensive phrases in the context of a joke. The video was not directly sent to an individual. Publication of the video did not involve targeted harassment of any individual. A central aspect of law, intent, was not present.

The legislation surrounding Section 127 of the Communications Act 2003 is vague and subjective. The arrangements of the court system resulted in a judge having singular power to decide what the intentions of an individual were. To use this rather clichéd reference; it is frighteningly evocative of Orwell’s conception of a thought crime. This is not the first deployment of Section 127, and it will not be the last.

The concept of British values (and those of Western civilisation generally), those of a secular, democracy that values individual freedom, rests upon the lynchpin of freedom of expression. The right to critique anyone, be it through straightforward discourse, satire, or sheer mockery, is the central pillar of this system. This case may seem relatively minor, yet it has drawn attention to a serious problem: freedom of speech in the UK is ceasing to exist. Any ground given to those who would seek legal remedy for being offended is the same ground given to those who will eventually oppress dissenting political speech. Given that the restriction of speech is immensely dangerous, it is certainly something worth fighting against.