As Kerr case shows, police fair game for foul mouths

Sam Kerr celebrating her team’s first goal during the Australia and New Zealand 2023 Women's World Cup semi-final.

One can only wonder what ordinary policemen and women make of Chris Minns’s and Roger Cook’s defence of Sam Kerr. It is, after all, puzzling to see state premiers, who bear the primary responsibility for policing, dismiss, as if it were a trivial matter, conduct that allegedly involves vomiting in a taxi, disputing the fare and then insulting the police officer who had been called to the scene.

That is not to say Kerr will necessarily be found guilty. English judges would scarcely allow themselves to be insulted in their courtrooms; but that hasn’t stopped them making it ever harder to convict those who hurl abuse at police officers. It is therefore entirely possible Kerr’s conduct will be found to fall short of the level of offensiveness required for a conviction to be secured.

However, what is at issue in the decisions that have raised that level is much more than a change in how grievous offensive behaviour must be before it breaches the law; it is also a change in the law’s nature and character.

A crucial purpose of the English law of insult, which dates back to the 14th century, was to protect the social hierarchy. Central to that purpose was the offence of “scandalum magnatum”, which imposed severe punishments on insults directed at peers, while allowing members of the peerage to abuse their inferiors.

Extensively applied in the great crises of the 16th and 17th centuries, the offence presumed, as William Blackstone noted, that “words spoken in derogation of such high and respectable characters amount to an atrocious injury”.

That presumption grated against the spirit of the 18th century, propelled, as it was, both by the rise of a commercially oriented gentry that challenged the aristocracy’s pre-eminence and by the Enlightenment’s emphasis on the universal nature of human dignity. It is “always a violation of our moral duty”, Immanuel Kant famously declared in his Groundwork for the Metaphysics of Morals (1785), “to deny others the respect we owe to each human being”, for regardless of their rank, “the mere fact that they are human beings” grants them a dignity that must be protected.

The implementation of that standard was neither smooth nor speedy: although the offence of “scandalum magnatum” had fallen into disuse by 1830, it was only formally abolished in 1887. By then, however, new public order statutes had reoriented the ancient prohibitions towards insults likely to cause a breach of the peace.

Those statutes were non-discriminatory: what mattered was preventing disorder, not preserving the social standing of an insult’s victim. As professional police forces were created to deal with the turmoil of rapid urbanisation, special protections were therefore granted to the police officers who were responsible for enforcing the peace.

The aim of those protections was simple: by ensuring that abusing police officers was promptly punished, they sought to help inculcate the respect for authority that would allow unarmed constables, usually working alone, to do their job. Classic studies of Victorian policing suggest the strategy was effective: although disorderly conduct scarcely disappeared, the rate of offences against police officers fell three-fold between the late 1850s and the early 1910s.

Immanuel Kant

It would, however, be wrong to attribute that decline entirely, or even mainly, to the threat of prosecution. The primary factor at work was the spread of a norm of civility that was closely associated with the emphasis – incessantly promoted in schools, churches and voluntary associations – on moral character, self-control and respectability. Offensive behaviour came to be viewed as a sign of personal immaturity at best, loutishness at worst, which might occasionally be tolerated but was invariably reprehensible.

Now, in contrast, abusive language has become an integral, rather than incidental, part of public life, going from online lynch mobs to the noisy street marches of Hamas’s useful idiots. The hurlers of insults have, for sure, always been with us; but those coarsening the contemporary public sphere are a different breed from their predecessors. Infusing incivility with self-righteousness, today’s “homo indignatus” cloaks what was previously considered a vice in the mantle of political virtue.

That new species is brimming with contradictions. It insists, to begin with, on the right to drench in obscenities those it regards as its adversaries while also insisting on the right to ruthlessly prevent those adversaries from presenting their own point of view. It simultaneously demands freedom of speech for itself and freedom from speech for everyone else – and most notably, for whoever it classes as evil.

And while it denounces any “essentialising” of the self-styled oppressed, it shows no reluctance whatsoever in “essentialising” the presumed oppressors: for example, by asserting, in what is obviously a racist stereotype, that all “whites” have an inherent propensity to abuse power, as Kerr seemed to do.

Clementine Ford

It is hard not to see in those contradictions the hallmarks of infantile narcissism, which combines an existential insecurity that constantly seeks protection from the world with a labile, uncontrollable and poorly directed rage at the world. And even a moment’s glance at the foul-mouthed tweets of people such as Clementine Ford and Antoinette Lattouf brings to mind the warnings Theodore Adorno, the father of Critical Theory, issued and reissued when he was confronted with the students who shouted down his lectures (for being unduly academic and intellectually demanding) in 1968.

Deriding a “half-educated” generation of the “neo-stupid”, Adorno argued that “unlike the merely uneducated, the half-educated confuse their limited knowledge for truth and when challenged, reach out mechanically for formulaic cliches”. Encased in certainty, what they wanted was not debate, which insults have never fostered; it was the victim’s submission and self-flagellation – to which the only alternative was being censored and outcast, if not annihilated.

In short, like the peers who were protected by the laws of “scandalum magnatum”, these champions of cancelling now demand deference – the deference due to a new ruling caste, whose arrogance rivals that of the medieval nobility.

By itself, the law cannot prevent the return to a world of the entitled and the silenced, the contemptuous and the despised. But it is one of law’s functions to render social standards explicit, guiding individuals’ sense of the limits of acceptable behaviour. And it is no coincidence that this plague afflicting the Anglo-sphere comes after the highest courts in the US, Australia and the UK, by rolling back sanctions against disrespectful behaviour, gave a virtual carte blanche to public incivility, notably towards police officers.

Sam Kerr may not have contravened the law, as it is currently interpreted; but her conduct, and the torrent of commentators exonerating it, epitomise the broader de-civilising process that is currently underway. With even the premiers’ granting that process their blessing, it is not just the cops on the beat who will pay its price.