Last weekend saw the arrest of a 19 year old man from Kent for allegedly posting a picture of a burning poppy to his Facebook profile page, which apparently was accompanied by an ‘offensive comment’, in violation of the Malicious Communications Act. This legislation makes it an offence to send letters and electronic communications with the intent to cause distress or anxiety i.e. a message which is ‘indecent or grossly offensive’. Although it would seem that this law was enacted to deal with problems such as hate mail and the unsolicited delivery of material containing obscene imagery (e.g. extreme pornography), its use to sanction the picture of the burning poppy appears to be effectively trying to silence what some might consider unpalatable, yet politically and legally valid, dissent.
The image of the burning poppy and the timing of last weekend are significant since the red poppy is a symbol of the commemoration of war dead in the countries of the British Commonwealth (the UK itself, along with inter alia Canada, Australia, South Africa, New Zealand and Malta), and is very visible in the run up to Remembrance Day on 11 November each year (the day World War I hostilities ended in 1918.
The red poppies themselves remain controversial, especially among the Irish republican community in the UK and Ireland since they are seen as a political symbol representing support for the British Army, which killed civilians in Northern Ireland (for instance during Bloody Sunday) and colluded with illegal loyalist paramilitaries during The Troubles, as well as among other communities throughout the former British Empire and beyond which have historically suffered due to the Army’s imperialist aggression, and by critics of more contemporary British Armed Forces’ activity in Afghanistan and Iraq. Indeed, an alternative to the red poppy for those which wish to publicly commemorate war dead but express disapproval of war itself is the pacifist white poppy, showing that the remembrance of those who have died in war does not mean the commemorator supports military action.
This is not the first recent occasion on which the red poppy has been the subject of a free speech issue. Last year, Emdadur Choudhury was fined £50 for offences under the Public Order Act for burning poppies on Remembrance Day in a way that was likely to cause ‘harassment, harm or distress’ to those who witnessed it.
Comparison has been made between these cases of poppy burning in the UK, and the practice of flag burning in the US, which Eugene Volokh has termed as instances of ‘secular blasphemy‘ i.e. the elevation of a society’s secular ‘sacred symbols’ which then can only be used in officially approved ways, whose legal protection he believes are overly restrictive of free speech. Interestingly, flag burning in the US enjoys constitutional protection, with the Supreme Court ruling in Texas v Johnson that it constitutes speech protected by the First Amendment. However, it seems that European countries are less willing to protect this kind of expression and more willing to protect their delicate citizens from being exposed to strong statements of anti-government or anti-establishment dissent, however unpalatable this expression may be for the average (conformist) person.
Furthermore, this heavy handed approach to ‘controversial’ online expression in the UK follows other cases last year of various left-leaning political groups’ pages disappearing from Facebook before the Royal Wedding, including groups protesting the government’s ‘austerity’ measures, groups against tax avoidance and student activists, as well as the current government proposals in the form of the Communications Data Bill, nicknamed the ‘Snoopers Charter’ because of the extended data gathering and surveillance powers it will give law enforcement agencies regarding British citizens’ online activity, with the corresponding increased incursion into citizens’ privacy and the potential chilling effect this may have on their online expression.