High Court rejects argument Twitter is ‘famously rude and offensive’
A barrister fined £1,000 for tweeting about “shrill negroids” has failed in a High Court bid to overturn the sanction.
Martin Diggins, who was called to the bar in 1992 but no longer practises, argued that the black student who was the subject of his tweet was a “snowflake” and the issue a mere “Twitter spat” that wasn’t a matter for the regulator.
But Mr Justice Warby upheld the fine, saying that the authorities were entitled to regard the tweet as “offensive” and “racially charged”.
The saga began in June 2017, when a final-year student at Cambridge University published an open letter to the English department about the need to “decolonize its reading lists”. The missive accused the uni of an “approach that elevates white male authors at the expense of all others” and argued for “the inclusion of two or more postcolonial and BME authors on every exam paper”.
The letter was later picked up by the Telegraph, which ran the front page headline “Student forces Cambridge to drop white authors”. It subsequently apologised and issued a correction.
But the article had already triggered widespread outrage — including from Diggins. On the same day of the Telegraph story, he tweeted about the open letter: “Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy an academic reputation it has taken aeons to build”.
The Bar Standards Board (BSB) thought that this was professional misconduct and took Diggins to a disciplinary tribunal chaired by Jonathan Glasson QC of Matrix Chambers. The tribunal agreed with the regulator and fined Diggins £1,000, describing the tweet as “racially charged and derogatory to women”.
It added that “the fact that the respondent’s twitter ‘handle’ directly took a user to a website in which the Respondent identified himself as a barrister crossed the public / private divide”.
Challenging the fine at the High Court, Diggins put forward a variety of arguments that drew on poems by Philip Larkin and TS Eliot and a speech by Martin Luther King.
He argued among other things that the student was a “snowflake” typical of the “hyper-sensitive liberal fascists that infest university campuses”. As such, she could not meet the legal test of being an “ordinary reasonable reader”.
Diggins also took issue with the involvement of “infamously hard-left” Matrix Chambers, complaining that “it has a number of policies on race and discrimination, including a mandatory requirement to attend equality and diversity training”.
But Mr Justice Warby found that “no fair-minded observer could identify a real possibility of bias on the part of Mr Glasson, on the basis of nothing more than his membership of a set of chambers with the characteristics which the appellant attributes to Matrix”.
The judge also rejected the argument that “Twitter is famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”. Warby noted:
“It is a notorious fact that many on Twitter use rude and offensive language, indeed that some engage in harassment of others, or wounding “pile-ons”. But I have no evidence, nor is it a matter of common knowledge, that everybody on Twitter behaves in these ways. Even if that was so, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages.”
Finding in the regulator’s favour, Warby concluded that “it was legitimate for the BSB to describe this as ‘offensive race-based language’, and equally proper for the panel, applying ordinary community standards, to find that it was ‘racially charged'”.
Barristers discussing the case — on Twitter, naturally — warned of the dangers of ill-judged tweets. Barbara Rich of 5 Stone Buildings said: “I think it far easier to damage than to enhance a professional reputation on Twitter, and tweets are read far more widely than by those who respond to them — you do not know which judges or clients are quietly following”.
But not everyone thought that pursuing a non-practising barrister over his online behaviour was a good use of the regulator’s time. “I’m sceptical whether one silly tweet in a private capacity by a non-practitioner can damage the reputation of the bar”, said Professor Andrew Tettenborn of Swansea University Law School.