At what stage does fair comment cross the line to defamation? What constitutes deliberate, malicious, concentrated attack on an individual’s integrity and honesty, carried out to such an extent it imperils or degrades that individual’s reputation? The verdict in this case is stated at the end of the essay report.
Wings versus Dugdale
The court case of Stuart Campbell, editor of the pro-independence website Wings Over Scotland, suing Kezia Dugdale, the former leader of the Scottish branch of the Labour party, is small potatoes in the annals of political cause célèbre. The Dreyfus Case it is not, nor is it a check on a British cabinet minster’s honesty requiring five upstanding judges to settle the issue. This is a civil matter requiring one judge, a sheriff. If the case has any significance it lies in the novelty of a new wave blogger establishing legal precedent.
I attended all three days of the case in Edinburgh’s plush Sheriff Court, keen to judge matters at first hand. Another reason for my attentive attendance was, I am a casualty of the collective malignancy dished out by Labour party hacks and their puppet master the GMB union, regrettably endorsed by dim SNP officials. (I am being kind to the SNP.)
Sticks and stones
The case has little interest for the wider public beyond the sideshow of how politics can so easily resort to smear and innuendo to stifle a strong voice, a trait well remunerated, one might add, by the unsuspecting taxpayer.
In epitome, the case is Dugdale, a gay politician, called Campbell a homophobe. In court Campbell was described as a vile person, Dugdale, indirectly as stupid. Accusation and counter-accusation was the order of the day.
‘Gay’ has long been used to denote a homosexual person, thus robbing the language of a good word for light-hearted happiness. Political correctness being what it is, which is mostly cant and clap-trap, everybody is outraged as a matter of daily therapy. It is a national pastime overtaking jogging for non-productive exercise. We take umbrage at the slightest resentment. A passing sleight is condemned as blatantly offensive, or abuse.
The parameters of fair comment
The US of A brought the law to bear on trolling and harassment in the digital age. A New York harpy, hiding behind a pseudonym, defamed a catwalk model so unceasingly by Internet that, tracked down by the model’s gumshoe, and sued by the model, the court found the reputation of the model sufficiently damaged to fine the woman making the unwarranted accusations and have her pay damages. Other successful cases and claims have followed, most recently a black woman against white supremacists.
The case of Wings v Dugdale is different in that an openly gay politician feels homophobia should be ‘called out’ whenever it appears, her exegesis that Campbell used a gay man’s sexuality as a joke. The American case is similar in that Campbell argues the defamation is intended to reduce his influence as a political commentator.
The accusation of homophobia rests on one short Twitter tweet Campbell made, his remark swamped by howls of condemnation from the pious and the malicious, the pundit and the pure at heart, raising the question when is harsh criticism character assassination?
Trial by tweet
Strangely, no evidence was produced to show Campbell had suffered damage to his reputation. His counsel did not argue loss of face, income, prestige, or career prospects. If anything, Dugdale’s accusation raised his public profile attracting readers to his website.
Campbell averred he was where he was because he felt angry and distressed at being maligned, ‘horrified and appalled’ as he put it. He and his counsel argued Campbell champions gay rights, and indeed he has “praised the US whistle-blower Chelsea Manning as a hero”, which when one thinks about it, is not quite the same thing. Manning is a man who wishes to be treated as if a woman.
Dugdale was also horrified and appalled. Her counsel argued she had every right to say what she said about Campbell in her Daily Record column and elsewhere. It was fair comment, her belief of his homophobia an honestly held view, a defence she returned to time and time again.
Asked by Campbell to withdraw the accusation, she refused, and so found herself in court facing Sheriff Nigel Ross, a possible £25,000 damages and the pursuer’s legal expenses.
Tweet of tweets
To the specific: the tweet was aimed at the Tory secretary of state’s son, Oliver Mundell, whom Campbell felt a very poor public speaker. Here is what it wrote verbatim:
“Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”.
To the uninitiated in Wingsonian barbs, that remark is not really funny or witty. The second part of the sentence, the punchline, doesn’t quite connect with the first part if unfamiliar with Mundell’s sexual orientation, or his son’s inability to deliver a speech. It leaves the non-informed reader puzzled by the comment.
Ambiguity does not in itself constitute guilt. That should be obvious to all, and I’ve argued this till Saltire blue in the face with my own legal adviser. Ambiguity should constitute abstruseness and nothing more. But one’s enemies are always frantic to determine calumny. What the sheriff has to calculate is, does it lead the casual observer to assume it is a homophobic comment, that there is no other interpretation, no doubt existing, and therefore the reader is justified in condemning it? If he leans to that view, Campbell is in trouble, but only if he finds evidence that Campbell is a homophobe.
In other words, a person can think a remark homophobic, but that does not mean the speaker of it is a homophobe. In that situation we are faced with insult versus evidence.
Campbell maintains the gibe is aimed at Oliver Mundell’s inadequacy to enunciate, not at his father’s long suppressed sexuality. As I’ve tried to demonstrate, that is not obvious on first reading. Nevertheless, the leap from a political poke in the eye to alleged all-out hate speech underpins the entire case.
Ambiguity and contradictions abound in the sphere of defamation: detestation expressed at Scotland’s legitimate political ambitions is not considered offensive, nor categorising Scots as lazy, alcoholics, or “subsidy junkies”. Those epithets are all acceptable to the British press and politician, not in the least racist commentary, for no one has challenged them in a court of law to prove them otherwise.
Background to the fairground
Mundell Senior came out as gay in 2016, saying it was “one of the most difficult things” he has ever done, although he ought to have added, it was the most difficult thing next to his job as secretary of state, for which the record shows him to be wholly unqualified.
Writing in her Daily Record column a few days later, Dugdale said she was “shocked and appalled to see a pro-independence blogger’s homophobic tweets”. (She used the plural.) The emphasis appears to be on pro-independence, rather than on Campbell.
Acting for Dugdale, the gist of QC Roddy Dunlop’s counter-argument was: Campbell’s tweet “targets a gay man in order to deride his son”.
I cannot see how it targets Mundell Senior, only that it uses his sexuality to make a rather leaden point about his son. The tweet is emblematic of the Wings Over Scotland site; while its editor can recognise a good joke when somebody coins one, sophisticated humour is not his forte. Scorn is the predominant attitude.
Placed under intense interrogation, there’s was no doubting Campbell’s ability to give clear, robust answers while under the cosh. He often matched counsel’s cross-examination with a series of strong ripostes. Told his written language is often peppered with profanities and abuse, he did not bat an eyelid. ‘Abuse’ he preferred to call “being rude”. Sheriff Ross intervened to ask what distinction Campbell drew between being rude and being abusive. Campbell answered, abuse is attacking people “without provocation”. “So one is discerning and the other isn’t?” the sheriff asked. “Yes”, replied Campbell. M’Lord will have the last word on that matter.
Dugdale struggled to develop her argument under cross-examination. She stuck rigidly to circular justification. She believed Campbell’s remark homophobic and that was that. She caused amusement when she said she did not know who George Takei was, the gay actor (and activist) of Star Trek fame, or the sexual orientation of Trump’s father, ignorance quite refreshing, it seemed to me. Whenever caught out on a factual howler she excused the faux pas by believing it correct at the time she uttered it. They cannot be lies, she said in so many words, if they are honest error.
Campbell’s advocate, QC Craig Sandison, claimed Dugdale launched her defamatory attack because she had been “tormented” by Campbell’s constant articles deriding her honesty. He went on, “To accuse someone of homophobia puts a stain on a person’s character and lowers them in society’s eyes”, adding without a blush, “He is not a polite man, he doesn’t restrain himself in setting forth his views. He is not circumspect”.
The same but different
As I listened to the protagonists I was struck by Dugdale’s naivety and her chronic inability to express intelligence, yet taken by her calm demeanour in court; she stands to lose a lot if Campbell wins his action, including her bank account.
On the other hand, I was surprised by Campbell’s lack of charisma, his visage of the veritable Troglodyte. I did admire his intensity and his studied reasoning, though some will find his pugnacious persona unrelenting. If he and Dugdale share anything, it is a remoteness, and a belief they are right, come what may.
Witness for Dugdale, David Mundell, declined to appear, duly excused by Sheriff Ross.
Campbell’s counsel called two witnesses. The first was Colin Macfarlane, director of Stonewall Scotland, a charity fighting for lesbian, gay, bisexual and transgender rights, a group that has defined homophobia to save us the trouble of thinking for ourselves. The second was Paul Kavanagh, the author of couthy, (cosy and comfortable), popular pro-independence articles under the pseudonym Wee Ginger Dug. Both are gay men who look like bank managers and talk in a matter-of-fact way about their chosen paths.
Macfarlane considered Campbell guilty of homophobia. Kavanagh thought him innocent. In essence, Kavanagh’s argument was, being gay attunes one to anti-gay sentiment, better able to judge than the rest of us, an obvious truism but a poor line of reasoning. It follows, only a Jewish person can detect anti-Jewish hatred, and an African-American a racial slur, definitions self-evidently preposterous.
Where does this leave the case and its outcome? Having read this far the reader will be disappointed to know I have not the slightest idea. It is impossible to say.
There are any number of permutations the presiding Sheriff could adopt. The question is whether the imputation – that Campbell is a “homophobe” – is true in general. ‘In general’ is the key phrase. Then again, there is something called ‘fair comment’.
The Sheriff will make his ruling in a few weeks. Scottish law is hazy on what constitutes hard and fast defamation as it emerges on the Internet, an area in legal flux, research ongoing, as it is in English law, an area on which the diligent advocates found themselves trawling extensively for precedent.
All I can say is, Campbell and Dugdale are public figures, people in the political arena used to wearing a skin as thick as a rhinoceros, and both are human, prey to hurt. The only thing they should fear is being ignored.
And in conclusion, M’Lord
To be frank, (if you catch my drift) were I gay I’d object to being introduced as a gay writer as much as I would a heterosexual writer. The terms gay, lesbian, what-have-you, seem redundant, meaningless categories. Why adopt a label? Human sexuality is a complicated thing. Surely we should judge a person by their acts of kindness and their integrity, not their sexual orientation?
Wondering why in a modern court of law, one laudably devoid of the worst of legal jargon, advocates and sheriffs insist on wearing 17th century perukes (wigs), and listening to the summations, an old, currently fashionable phrase came to mind…..
… if only Dugdale’s father had not met her mother….. and then I remembered he is a very strong supporter of Scotland’s independence. Nothing is plain black or white these days.
As my perceptions of the case led me to reason, the verdict received on Wednesday 17 April, 2019, is a 50-50 judgement. Stuart Campbell is not a homophobe, but Kezia Dugdale’s accusation is fair comment. No damages awarded.
‘The sheriff found that “Ms Dugdale could [not] explain why the tweet was homophobic” by any known definition of the term, yet found her belief that it was to be fair on the grounds that she took an “impressionistic” approach to the meanings of words.’
Of Campbell’s original tweet Sheriff Ross added that, “The tweet was not motivated by homophobia and did not contain homophobic comments.” Sheriff Ross also agreed that “Campbell had demonstrated by his conduct over many years that he supports equality for homosexual people”.
Outcome: a pyrrhic victory for Campbell. For the opponents of civil rights and reason, the outcome is carry on, smearmongers! All is safe.