What the bleep is the point?

On Tuesday morning my twitter feed was sent into a spin on the news that the Victorian government was imposing on the spot fines for those caught using indecent language. I feel this is indicative of the type of event that can make news in the social media age. Issues that are relevant to the individual, evidently I must follow a lot of Victorians who engage in offensive language. News can be streamlined to your own interests and desires, not that I feel it's a good idea to only get your news from one perspective, contrarily I like to 'hate follow' some high profile conservatists, just to maintain perspective, as a bonus the anger makes me feel alive! But back to my point, if you follow people who share your own concerns, you can stay informed on the issues relevant to you, without the bias and agenda that comes with the filtered down version of events available in the commercial media. News can be sourced from people whose main purpose is not necessarily to appease the views of an institution. Meaning readers can escape the effects of the hypodermic syringe model, whereby they accept the media's depiction of events unquestioningly. (Marsh and Melville 2009)

Many are quick to criticise the effect of social media. Consider the recent case of CTB v Twitter Inc over the naming of Ryan Griggs despite his super-injunction (The trial Warrior 2011); or moral panics surrounding cyber bullying and sexting. There are just as many examples of the social media enterprise being used for the greater good. The recent 'slut walk' went viral over twitter and facebook rallying support for a worthy cause, making the arguably outdated and irrelevant concept of feminism resonate with an entirely new generation.  So why the outrage over swearing legislation? These laws have actually existed for a great deal of time, in fact since 1966 you could face up to two years imprisonment for serious indecent language. (Madigan 2011) The difference was the matter had to go through the courts. This was expensive and there were large amounts of paper work involved for police. So surely dealing with this matter via a simple on the spot fine is a superior approach? Well no, not necessarily, a law has to actually be used to take effect so while this law has existed, it has remained largely symbolic. This is a classic example of technocratic justice, the drive for efficiency over the pursuit of justice.(Brown et al 2011)  This reform may be imposed under the guise of saving police time and court costs, however this is simply untrue, as previously, pursuing such matters was probably not worth effort so did not occur. The greater ease this amendment has afforded police means we now run the risk of fines for profanities being handed out like speeding infringements. Ironically the fine for each of these offenses is roughly the same (Madigan, 2011). Which makes perfect sense considering one is potentially deadly, the other potentially offensive, wait a minute...?


Laurence H. Tribe said "An excess of law inescapably weakens the rule of law". Now that issues of wasting police time on paperwork needn't be considered we will just see more of these charges doled out thoughtlessly in response to an apparent deterioration in public behaviour. But will this achieve any substantial change? In his writing on overcriminalization Douglas Husak states "penal liability is unjustified unless it is imposed for an offense designed to proscribe a nontrivial harm or evil, and may not be inflicted unless the defendant's conduct is wrongful". He calls for a "stringent test of justification" for all legislation to avoid "cluttering our criminal codes" with mala prohibita offences, such as public profanities. Criminal legislation must have a legitimate and substantial state interest. One might claim, given the aforementioned uproar amongst the public, that this is simply untrue of this legislation. Given this law is aimed at remedying the "deterioration in public behaviour" we might apply the "three assumptions which must be satisfied before the particular rule can be expected to change behaviour" to this new approach.
1) Offenders must be aware of the rule.
Check.
2) Knowledge must be able to influence behaviour at the time of the offence.
Unlikely.
3) They must believe the perceived costs outweigh the perceived benefits of offending.
Given the profanity laden ridicule this announcement has attracted?
Evidently not!
(Brown et al. 2011, pp.107-8)

This is just another example of a government instigating a zero tolerance policy designed to illustrate action more so than to endorse any real change. "Every minor infraction is punished to the full extent of the law" (Cowdery 2001, p.26 ). It acts under the assumption that the "theory of selective incapacitation: that is, if you 'take out' minor offenders they will not progress to committing major offences" is an effective rule of law enforcement. The real consequence of this approach, not specific to this offensive language example but in a broader legal context, is that minor offenders are sent to institutions where they learn from major offenders. The logic of this tactic is, to me, unfathomable.

"We want them to be responsible, so we take away all responsibilities... we want them to be non-violent, so we put them where violence is all around. We want them to be kind and loving people, so we subject them to hatred and cruelty... We want them to quit hanging around with losers, so we put all the losers under one roof."
(Challeen 1994, in Matthews 2006, p.1)


References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney


Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia

Madigan, D 2011 'I say fiddle sticks to your swearing fines Mr Baillieu', The Drum, 1 June
http://www.abc.net.au/unleashed/2740602.html

Matthews B 2006, Intractable, Macmillian, Sydney

The trial warrior 2011 'CTB v. twitter, Inc. and unknown persons: trying to flog a dead horse', The Trial Warrior Blog, 23 May
 http://thetrialwarrior.com/2011/05/22/ctb-v-twitter-inc-and-unknown-persons-trying-to-flog-a-dead-horse/