At a conference held at the University of Chicago in 1996 to examine the implications of cyberspace for the law and legal practice, Judge Frank Easterbrook argued that attempts to rework existing legal categories to address electronic forms of communication were wholly misguided and likely to cause confusion. Lawyers didn't understand the internet and so the claims they made about it were likely to prove false.
This ignorance suggested that efforts to remodel existing legal concepts were doomed to failure. Famously, he declared, it made no more sense to talk of a specialised law of cyberspace than it did to talk about a "law of the horse". Instead, lawyers should carry on applying existing legal categories to everyday legal problems whether they arose online or not.
Of course, Easterbook's unwillingness to sanction creative judicial thinking chimes with the cautious and incremental nature of judicial thinking in general. Judges will often attempt to avoid controversy by crafting closely-argued rulings that are heavily fact-dependent, thus staying well clear of the broader questions of principle that lie beneath the surface of a case. If major, non-incremental reform of the law is needed, better to leave it to the elected representatives of the people in parliament where democratic legitimacy resides.
An important implication of this attitude is that judges and lawyers expend much intellectual energy on shoehorning new practices and behaviours into existing legal categories. The case of Paul Chambers - whose conviction for sending a "menacing" message via a public communications network under the Communications Act 2003 has now been quashed by the high court - neatly illustrates this point. The shoehorning occurs here in a context where the legal professions' understanding of social media platforms and how they function is questioned by users of those platforms.
Chambers' initial conviction at Doncaster Crown Court (incidentally, where proceedings were themselves tweeted instantaneously to the world outside the courtroom) sparked a series of protests in which approximately 4000 persons retweeted the offending words. Comedians Stephen Fry, Al Murray and Graham Linehan joined the campaign to have his conviction overturned.
A concert at London's Bloomsbury Theatre was organised to raise funds for his appeal at which Fry declared his willingness to continue retweeting Chamber's words and face a prison sentence if necessary. What energised campaigners was a sense that the law was being badly served by an apparent inability to distinguish between a joke (however much in poor taste) and a credible threat to injure persons and/or property.
The high court's unanimous ruling delivered by lord chief justice Lord Judge will go some way to reassure Twitter users that the legal system is making efforts to come to terms with the nature of electronic messaging and the context in which individual tweets are sent and received. It will be welcomed by those who pointed out that the CPS decision to prosecute Chambers flew in the face of separate assessments by airport and police personnel that the defendant had merely engaged in a foolish comment that posed no credible threat or menace to airport security. Tweeters will doubtless be reassured that if they choose to reproduce Dick the Butcher's words from Shakespeare's Henry VI Part 2 - "Let's kill all the lawyers" - there is a good chance they will not be committing a criminal offence.
Notwithstanding this happy outcome for Chambers, the route by which the court reached its decision is worthy of closer attention to see what it tells us about the courts' attitudes to internet speech. Noting that the 2003 Act predated the launch of Twitter and that the statutory reference to "menacing" was itself based on a previous Act of 1935 which had first employed the term, the court took the view that English law had long been tolerant of satirical, iconoclastic, rude and even distasteful opinion about serious and trivial matters before the 2003 Act and would continue to be so in the era of social media.
On one view this stance may seem reassuring. Upon further reflection however, a more troubling analysis of the ruling is possible. Our high court is declaring alongside Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.
Nonetheless, the failure to question whether legal regulation of online speech ought to be subject to the same rules that were designed for and apply to offline speech forms need not prevent others (including users), from participating in this debate. For many, Chambers' case should never have reached court in the first place. The challenge now is to show why tweets, blogs and other conversational forms of electronic speech should lie beyond the reaches of traditional criminal offences and whether there are any circumstances in which online speech should result in the speaker being hauled before the criminal courts.