Warning: I am currently fighting the flu, which is why I’m posting this here instead of making a video. I’m pretty sure some of the stuff that follows is stuff I’d edit out if I was less ill.

I’ve decided to write out my thoughts here instead of repeating the same things to multiple people who have asked my opinion. The latest “hot take” scorching the internet is the case of a YouTuber who goes by Count Dankula teaching his girlfriend’s dog to do a Nazi salute. He’s been convicted of “gross offensiveness” and “hate speech” under Scottish law, because in 2016 he decided to make a video with the primary purpose of upsetting his girlfriend, complete with images of Hitler and comments like “gas the Jews”.

He claimed this was all just a joke.

Declaration of potential personal bias time: I have a comedy background. I’ve had broadcast standards rulings made against me. But those rulings didn’t involve a criminal conviction – the TV station just had to put up a message between shows apologizing for causing offense. I think that the Canadian system for dealing with this sort of thing seems much more commensurate with the harm caused. Unfortunately, there’s no equivalent of the Canadian Broadcast Standards Council for YouTube. Perhaps there should be.

I’m also Jewish. Some people think I’m a “fake” Jew, or that I don’t “look Jewish”, but when it comes down to it, I have personal investment in both sides of the fallout of Count Dankula’s thoroughly foolish behaviour. I’ve heard the family stories of suffering in the Holocaust.

I also tend to get annoyed when people train animals that aren’t theirs to do annoying crap. It’s disrespectful and rude. I’ve had people do that with my dog, and retraining the dog is a huge pain in the ass.

So I think that Count Dankula, legal name, Markus Meechan, is a complete asshole. As the sheriff in his case pointed out, he knew what he did was offensive, and he knew why it was offensive. He did it anyway. To be an asshole.

There was no greater purpose to his stupid behaviour, so the people online comparing him to political dissidents with an actual point… you’re assholes too. When entertainers like Howard Stern deliberately cause offense, they’re in service to a higher cause: when Stern got fined over a conversation about masturbating to pictures of Aunt Jemima, but NOT when he said he hoped the FCC chair’s prostate cancer came back, people started to realize that the FCC rules were flamingly ridiculous.

That’s a valid challenge to free speech norms. Sometimes, free speech rules are set by assholes. And that’s how I feel about the laws in Scotland. Serving jail time for bigotry doesn’t make someone less of a bigot. Shit, the gangs in jail organize along race lines.

I mean, just read this law. It’s an asshole law:

Section 1(1) of the 1988 Act (as amended by section 43(1) of the Criminal Justice and Police Act 2001) provides that:

“Any person who sends to another person (a) a letter, electronic communication or article of any description which conveys (i) a message which is . . . grossly offensive . . . is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should . . . cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated”.

Meechan is clearly in contravention of this law. He put the video on YouTube to intensify the distress and embarrassment that his “prank” would cause his girlfriend. Even though he only had eight subscribers at the time, he was creating conditions to have those eight subscribers, and anyone they chose to share with, participate in committing a cruel act against his girlfriend by teaching her dog antisocial behaviours.

I repeat. Meechan is an asshole. And this is an asshole law.

Because it’s an asshole law, the judge in the case is correct: no additional context really matters. Interestingly, if Meechan had just trained the dog to do a Nazi salute, and NOT used YouTube — an electronic form of communication — the law would not have applied. It’s only illegal because he violated the Malicious Communications Act.

Apparently the law would also have protected the speech of one Anti-Semite talking to another Anti-Semite through, say, private email. If you’re communicating with someone who you know shares your views, you have no intent to offend.

So this guy managed to get convicted of a crime where a legitimate defense would have been that he actually did hate Jews, and was just talking to other people who hate Jews, so he didn’t know he was being offensive.

Seriously, how does someone fuck up THAT badly? Oh, right, he put his hazarai on YouTube.

Meechan is a grown-ass man living under U.K. law. When a grown-ass man decides to become a YouTuber, he assumes a responsibility to obey the laws where he lives. If that grown-ass man breaks the law, he is subject to the punishments under that law. It doesn’t matter if he AGREES with that law. Those are the rules, asshole.

In a rational and just world, we shouldn’t need laws preventing giant acts of assholedom. Unfortunately, people throughout history have been such massive assholes that some thoroughly asshole laws have ended up on the books.

The question of whether the law is just, however, is far more complicated. We can’t let unjust laws stand just because the unjust law only applies to assholes. Prison is full of assholes, and all prison often does is makes them into bigger assholes, due to close proximity with other assholes.

At first, I thought this was a simple issue: I couldn’t see a situation where a video that didn’t involve child exploitation, sex trafficking, or blackmail could really be criminal.

But then I thought “Am I just saying this because that video, did, in fact, bother me? So I’m going out of my way to show I can handle it? Am I being a stupid asshole here too?”

So I sat my own ass down and thought about it.

The more I thought about it, the more I started thinking about the purpose of free speech laws, and whether Meechan’s behaviour falls into the realm of a free speech exception: speech with the principle purpose of creating unnecessary panic, otherwise known as “falsely yelling fire in a crowded theater”.

I’m still not entirely sure about this avenue of thought. Like I said, I have the flu. But I can’t entirely shake the idea that there might be something here.

The thinking is that if there actually IS a fire in a theater, you’re yelling “fire” to protect someone from a real threat. If there’s no fire, you’re creating the conditions for a stampede, therefore creating a potentially dangerous situation where one previously did not exist.

The sorts of Anti-Semitic content that Meechan put on YouTube doesn’t just offend people. It makes some people lose their freaking minds. Yes, some people are just too sensitive and look for things to be offended by, but the PTSD suffered by survivors of the Holocaust was found to have biologically altered the stress hormones of their children. So one person’s “too sensitive” is another person’s transgenerational trauma.

You poke at that trauma, you can induce panic. Panic can cause a stampede.

We know that online stampedes can and do occur, and that they cause psychological harm to the people who get trampled. In Meechan’s case, those who see Anti-Semitism, even of the casual kind, as a serious social problem, and those who believe in free speech rights above all else, are currently trampling each other online because they’re panicking over their pet causes. They’re so afraid that their way of life is under threat that they don’t care who they stomp as they race to their moral high grounds.

We need to start thinking about YouTube as a very crowded public theater, because that’s exactly what it is. And it’s not even the sort of theater that can inform an audience of content with disclaimers before you buy your ticket, because of YouTube’s faulty autoplay and recommendation features. I think YouTube’s brain trust is a bunch of assholes too, but I’ve made numerous videos about that. Let’s stay on topic here.

When you do something on a “crowded theater” platform like YouTube that you can reasonably expect to cause an extreme reaction, you’re yelling fire in that crowded theater. You’re doing something calibrated to make people freak out. The interesting thing about Meechan’s case is that he didn’t realize how crowded his theater actually was. He thought there were only eight people in it, but he didn’t realize that was only the row he and his friends were sitting in. Three million views later, he’d caused an online stampede.

Anyone who thinks it’s harmless fun to upload Anti-Semitic content to YouTube is probably living in a pretty serious echo chamber, which is where stampedes are more likely to form. Jews are seen, by both the extreme Right and the extreme Left, as a privileged Other, and both political extremes continue to sweep religious hate crime statistics under the rug. In the US, UK, and Canada, Anti-Semitism is the most common driver of religious hate crime by a sizable margin, more common even than the much ballyhooed Islamophobia. Precisely because discussions of the Middle East are such a powder keg, any fanning of those flames could cause an already simmering conflict to boil over.

So inciting that sort of fighting is profoundly reckless. The police need tools to keep the public peace.

This is why, for many people, the idea that someone could say something Anti-Semitic as a joke while not actually being at least a little bit Anti-Semitic is too big of a leap in logic. In order to understand the dynamics at play, you need to understand the “shitposting” culture of which Meechan claims to be a professional.

Shitpost culture grew out of the frustration that some people had with the perceived speech police of internet culture. They formed communities such as 4Chan where they could “shitpost”, within a complex structure of advance consent to offend. The social conditions on the /b/ board which allowed pretty much everything but child pornography, were not the same as on /pol/ — short for “politically incorrect”, with the racist and sexist speech that came with that concept. The thing about 4Chan was that everyone went to 4Chan knowing full well what to expect.

In 2014, the “shitposting’ culture of 4Chan “broke containment” due to some reactionary changes to the way the various boards were moderated. Disgruntled 4Chan users poured into services like Twitter and YouTube which professed to be platforms devoted to free speech. Unfortunately, Twitter and YouTube had very different ideas of what constituted free speech than users of 4Chan did, and the social media culture wars went crazy. This has – allow me to exercise my free speech right to moderately offend – led to an online environment that shit the bed, ate that shit, contracted dysentery from that shit, has been crapping out liquid dysentery ever since, and is now close to dying like a character in the Oregon Trail.

Returning to seriousness, we are at very real risk of completely losing sight of what free speech protections are designed to do. If we lose sight of those goals, legitimate authoritarians can claw back our free speech protections by giving us the perception of freedom instead of the real stuff.

Free speech protections serve to create a truly free and open society where people can speak truth to power without government persecution. Free speech protections are designed to create an open marketplace of ideas, so the truth can emerge from diverse opinions. Free speech doesn’t protect threats or defamation because they don’t serve an open marketplace of ideas. They’re the dysentery someone shit into the well.

So think of 4Chan as an online town where the water supply is a well with dysentery. For some reason, the people who go to that town find diarrhea of the keyboard to be fun, so they deliberately drink from the dysentery well so they can fling shit at each other like nuclear powered gorillas.

This is the essence of “shitposting”. Sometimes, it just feels good to have a good shit. On 4Chan this isn’t crossing the threshold of falsely yelling fire in a crowded theater, because everyone’s yelling fire, and everyone knows there ain’t no damned fire. It’s more like watching TV at home, where you can yell at the screen all you want, then yelling in a theater.

Hitler is generally seen as one of those things you can’t yell in an online theater because it causes a stampede. Which is why shitposters LOVE Hitler memes. On 4Chan, that’s fine. Meechan’s problem was that he took his “professional shitposter” routine onto a platform where shitposting isn’t appropriate, and in doing so caused an online panic through a deliberately offensive act.

I agree that it’s a little too easy to cause panic online these days, but we’re all aware it’s a reality. When you’re in a crowded theater and you falsely yell “fire”, then claim you only said it to make your friends laugh, that is NOT a defense.

Now, here’s the catch. Yelling fire is only exempted from free speech if there’s no fire, so if Meechan was a legitimate Anti-Semite, there would have been some defense for his comments.

As crazy as that sounds, it’s true.

The most virulent Anti-Semite, Islamophobe, transphobe, homophobe, or white supremacist has the right to express their views – within the confines of the laws of various lands, of course. Letting people express their hate is the only way that the rest of us can point out the flaws in that sort of bigoted thinking. This doesn’t mean that bigots should be allowed onto various media services, because they’re privately owned and therefore have the right to set their own rules. It just means that we generally agree that someone shouldn’t go to jail just because they’re a bigot.

So if you legitimately hate Jews, if you think we’re an actual fire that will burn your pure goyishe friends and family, have at it. Sound your alarms. That’s free speech. You’re wrong, but perhaps if you’re able to spill your guts, you’ll eventually encounter something that will let you stop being so afraid, and actually, finally, be able to have a conversation and broaden your horizons so you stop being such an asshole.

In fact, I’m religiously required to listen to your hateful nonsense if I think I can help, or if listening will stop you from actually harming another person. The Torah treats speech as a holy gift, so Jews are compelled to speak and hear truth, even unpopular truth. However, gossip and slander are seen as great transgressions, so the minute someone starts spewing bullshit just to “shitpost”, all bets are off.

At first, it may seem counter-intuitive to see legitimate hate as less transgressive than saying hateful things you don’t mean, but that’s the beauty that’s found in the complexity of the Torah. People who are driven by hate and fear can still be part of a meaningful, legitimate, productive conversation. They might learn something. You might learn something about the nature of fear from them.

You can’t, on the other hand, have a productive conversation with someone who is just spewing stuff for attention. It’s a waste of time.

This is completely in line with the purpose of free speech protections: that marketplace of ideas only functions to seek truth if it isn’t poisoned by people spewing lies. Therefore, saying “I’m not an Anti-Semite, I just said something Anti-Semitic as a joke that I didn’t really mean,” is no defence. You’re polluting the free marketplace of ideas with insincere crap.

Now the big question: what to do about Meechan’s utterly stupid and, according to the laws where he lives, illegal behaviour. As I said before, I don’t think it does the public any good to put him in jail: I believe that jail is for mental and physical adults, which is precisely why I don’t think someone who calls himself “Count Dankula” should be in jail for any non-violent crime.

Nor do I think that taking away the internet from him forever is appropriate, because that doesn’t teach him anything. His twitter feed currently reads “going to jail for a joke”, and “I’m not a Nazi but my dog is.” which shows that he’s learned absolutely nothing from his court proceedings. Stop with the fershnickered Nazi meshugas. Oy.

In a just world, Meechan will now have to somehow confront the inherent immaturity that made him think that putting openly Anti-Semitic content on a public service was a harmless activity to anyone but his girlfriend. Perhaps if he actually talked to survivors of the Holocaust, or their families, who could tell him about the ongoing trauma they experience because of the Nazis, he would think it was far less funny to claim his dog is one. Mandated community service would be one way to do this.

Or perhaps Meechan should have to compensate other YouTubers who have suffered extreme financial losses because of idiots like him and Pew Die Pie and Logan Paul, due to the YouTube adpocalypse that happened because a relative few YouTubers acted like idiots and YouTube panicked. YouTubers who play by the rules don’t get the public sympathy that comes with huge amounts of press, as well as the accompanying petitions and fundraisers.

The people who are now struggling to make a living because their ad revenue took a hit don’t find any of this funny. If the assholes get fined, YouTube can afford to pay out more in ad revenues to the content creators who play by the rules. Everybody wins. If Markus Meechan or anyone else believes strongly enough in what they’re doing to continue to rack up hefty fines, let them do it. They’re willing to pay the costs of running their mouths. Call it the Howard Stern model.

But I actually think that fines would make these guys behave better than jail time, because fines seem real, whereas jail seems absurd.

Or how about court mandated therapy? That’s probably the most productive option. Something left this guy damaged enough to make a series of truly terrible life choices. Like the people in jail for minor drug convictions, jail isn’t the place for Markus Meechan. It serves no public good, wastes public money, and gives him the thing he seems to crave most: legitimacy. He doesn’t deserve it.

Because he’s an asshole.