Britain needs to take a lesson from the US in protecting free speech

PUBLISHED ON: November 23, 2020

Our fundamental right to free expression is under unprecedented threat. A UK version of the First Amendment could be the answer

The sun is setting on the Enlightenment in the United Kingdom. Before it’s too late, we must take steps to protect our most fundamental of rights: the freedom to express ourselves. A hodgepodge of poorly designed laws and questionable court judgments have empowered the easily offended to censor speech.

Freedom of expression is fundamental to life in a free and democratic society. This includes the freedom to express ideas that others find loathsome and hateful. It allows us both to express our innermost thoughts, and to explore controversial and important topics in public debate. The UK’s protection of freedom of expression, revolving around Article 10 of the European Convention, is woefully inadequate.

We can see the rapid slide in rights in the maltreatment of vlogger Count Dankula, the police’s pursuit of conservative commentator Darren Grimes, and Bethan Tichborne’s public order conviction for telling David Cameron that he had "blood on his hands" during an anti-cuts protest. Shockingly, over 400 people were arrested in London alone over the last five years for communicating in an “offensive nature,” sending an “offensive message” and/or sending “false information.” This would have been unthinkable just a short time ago. It is now becoming the norm.

British law infringes on freedom of expression. There is mounting evidence that longstanding legislative provisions including the Public Order Act 1986, Communications Act 2003, Terrorism Act 2000 and 2006, and the Malicious Communications Act 1988 are increasingly being applied in an overly broad fashion which was not contemplated by their drafters.

The imprecise drafting of existing law means that as social attitudes shift to narrow the confines of “acceptable” debate, broader categories of speech will be criminalised as “offensive,” “distressing” or “hateful.” This is placing power over public discourse in the hands of the easily offended.

Worse, new threats to freedom of expression lurk just over the horizon. These include the cowardly suggestion by the Law Commission that controversial speech which provokes terrorism, like the Charlie Hebdo cartoons, should be banned in order to prevent terrorism. It also includes the bizarre “Online Harms” proposal by the Government in Westminster which would put a quango in charge of policing “legal but harmful” political speech on the internet.

Meanwhile, the SNP’s Hate Crime Bill is proposing broad new categories of speech crime in Scotland, including new offences where the drafting of private correspondence containing offensive thoughts between consenting adults, even before the correspondence was sent, would be an act to which criminal liability attaches. The law enters everyday life like never before, policing what you can say even in your own home. We are truly entering the realm of thought-crimes.

In my new report for the Adam Smith Institute, Sense and Sensitivity: Restoring free speech in the United Kingdom, I argue that Parliament should take a stand against state censorship and implement a UK-wide Free Speech Act, modelled on the First Amendment of the Constitution of the United States. This should protect all non-threatening political speech from state interference. The only exceptions being that of criminal threatening, harassment, malicious defamation, perverting the course of justice, or direct incitement already in law and unprotected anywhere in the world.

In addition the government should buttress free speech in existing law by removing all references to “abusive” or “insulting” words and behaviour from Parts I and III of the Public Order Act 1986. And they should replace Section 127 of the Communications Act 2003 with a provision that limits the scope of the existing rule on electronic communication to “threats” only and bringing a new rule that addresses meaningful stalking and cyberstalking threats which cause or intend to cause substantial emotional distress.

Freedom only to speak inoffensively is not worth having. The British people no longer have freedom of speech. The time is ripe for Parliament to step in to restore this most essential and ancient of our liberties.

Preston J. Byrne is a technology lawyer and Legal Fellow at the Adam Smith Institute. He is admitted in England and the United States.

Link to The Telegraph