12/11/2012 08:26 GMT | Updated 12/11/2012 08:26 GMT

On Poppy Burning

With true free speech has to come an understanding of when and when not to use it. But you can't legislate that. It must be voluntary - especially in a world where a whisper can reach a million people in an eyeblink.

At 10:59 on 11 November this weekend, I was sitting with my wife and daughter in a restaurant. The alarm I'd set earlier went off, we waited until 11:00 and then sat in silence for two minutes - as much as you can with a two-year-old, and I have to say she managed pretty well.

At the table opposite, though, it was rather a different story. As my reminder went off, a woman received a call on her phone from someone who was apparently near the Cenotaph. The caller wanted her to know that the two-minute silence was about to start. They then talked all the way through it, and when she concluded the call she went on to complain to her companions that no one had been silent in the restaurant. It was a bravura performance of absolute self-centred nonsense. No one said anything to her, but a lot of people did so in a very British, pointed way which she absolutely did not notice - despite being, I should point out for the record, British herself.

It was infuriating: rude and a utterly vacuous - but it was plainly not a crime.

Well, I say that.

Kent Police, it seems, have just arrested a young man for posting an image of a burning poppy on Remembrance Day. The law he may have broken is part of the Malicious Communications Act of 1988, which makes it illegal to send a message which would cause 'gross offense' to those to whom it is related, who need not be the recipients. It is not relevant whether the message is received by anyone: the breach of the law occurs in the sending. (Kent Police, incidentally, are taking some criticism for this. Don't blame them, they didn't make the rule.)

Poppy burning has been put on trial before. Emdadur Chaudhury of Muslims Against Crusades was convicted of a "calculated and deliberate" insult to Britain's war dead in 2011. MAC is an organisation which apparently annoys even Index On Censorship, the free speech charity, but as the Index blog points out, Chaudhury was not punished for any links he may have with global jihadists, but for burning plastic flowers. It's inappropriate but to me unavoidable that that phrase in his conviction holds an echo of Harry Patch, the last known survivor of Passchendaele, who died in 2009. In one interview, Patch called war a "calculated and a condoned slaughter of human beings" (about 30 seconds in). Elsewhere, he was even more forthright. The Times reported him as saying: "To me, [war is] a licence to go out and murder." If he had Tweeted that statement on the morning of 11 November, would he technically have been guilt of grossly insulting himself - or equally ridiculous, of insulting others who venerate the dead of Passchendaele, but were not there?

I'm not an absolutist about free speech. Intellectually, I believe that most of the time it's better to let things get said, argue them, and put lies and stupidities to rest. Practically, I know that newspapers rarely issue corrections with the same prominence they give to denouncements - and Twitter, by its nature, never does. And some things - say, the locations of women's shelters, the names of suspects in some criminal cases, the details of undercover operations in progress - need to be held close. I also don't have great sympathy for the newspapers which stepped over the line with Chris Jeffries in the matter of Joanna Yeates's murder, and I dislike the present sense on social media that breaking injunctions and naming names in celebrity gossip cases is an assertion of free speech. With true free speech has to come an understanding of when and when not to use it. But you can't legislate that. It must be voluntary - especially in a world where a whisper can reach a million people in an eyeblink.

The idea that the law should punish what is rude; that government should protect our tender sensibilities from those who would - quite often with shallow motivations but sometimes with deeper and more serious complaints - challenge our national certainties and rituals, should alarm and anger us. Orthodoxies which cannot be disputed are what ultimately create moments like Passchendaele. The First World War was a horror of gas, industrialised slaughter, fear, and appalling human suffering. Saying so at the time would have seen you shunned at best, on trial at worst. Looking around the world, it isn't hard to find contemporary examples, often propped up by national fury.

None of this diminishes the heroism of some or the sacrifice of many in war, but as Harry Patch said, that doesn't make it something to think well of. Spreading a patriotic blanket over the shortcomings of war and our reasons for waging it diminishes the people who die in it rather than cherishing their memory. Remembrance Day is about all our wars, of course, not just that one, but even so: government should not be the arbiter of what is or is not an appropriate response to the two-minute silence. Government in a democracy should push us to consider viewpoints we want to reject, to listen to arguments we dislike and disagree with, and yes, which offend us - otherwise our ability to participate in a genuine democratic society is curtailed, and we perpetuate the pandering, insipid, and unsatisfying charade that is modern political life in the UK.

Burning a poppy on Remembrance Day is obnoxious. It no doubt puts the person doing it at risk of a punch in the nose - and that is, in a way, a perfectly appropriate human response, expressing very effectively a countervailing personal perception of the situation, for all that it's also the wrong response. But that a symbolic action of this kind puts one at risk of arrest is a mistake, in terms both of the practice of democracy and of the ethics of our society, and we should move to strike the law.