Government should introduce a United Kingdom Free Speech Act modelled on the First Amendment of the USA

• Existing laws, as applied, have created categories of “speech crimes” for offensive but otherwise benign political speech.

• There is mounting evidence that existing law is capable of being applied, and is actually applied, in an overbroad fashion which was not contemplated by its drafters.  e.g. the treatment of Darren Grimes in June of this year

• The poor drafting of existing law means that as social attitudes shift, broader categories of speech are criminalized as “offensive,” “distressing” or “hateful.” 

• British citizens face emerging threats to freedom of expression posed by the Law Commission and “Online Harms” proposals, as well as the Hate Crime (Public Order) (Scotland) Bill. 

• Scottish Hate Crime Bill threatens sharing of potentially offensive Internet memes and freedom of speech in the home

A new paper released by free market think tank the Adam Smith Institute argues that freedom of expression is under significant and severe threat in the United Kingdom, both at the Westminster level and with a Bill currently progressing through the Scottish Parliament.

The think tank argues that there should be no right to not be offended, no right to prevent others from expressing ideas that one finds uncomfortable or dislikes, in positive law. With online life becoming everyday life for most people overreaching legislation risks snuffing out free speech, with the report author arguing that “the only way free inquiry will survive is if the police have no role in the regulation of political speech.” 

Freedom of expression is fundamental to life in a free and democratic society. It reflects our underlying moral right to think and express ourselves, even when it offends, disrespects or annoys others. It is, the Adam Smith Institute argues, what allows us to be individuals and the ability to express contrarian ideas allows us to explore controversial and important topics and strive for better understanding of the challenges we face. Censorship impedes this process.

Currently the UK has significant challenges to freedom of expression via the Public Order Act 1986, Communications Act 2003, Section 127 and Malicious Communications Act 1988, Section 1. The think tank argues that proposals by the Law Commission, the Hate Crime (Public Order) (Scotland) Bill, and ‘Online Harms’ in discussion at Westminster represent emerging threats to the principle. 

Both these existing laws and the new ones under discussion go against the British principles regarding free speech built up in political and legal case law that guard freedom of expression “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” (Handyside v. United Kingdom, App. No. 5493/72.) 

Dramatic action is required if the UK’s rapidly-evolving statutory speech regime is

to avoid being used as a sledgehammer to crush dissent, the report’s author argues, saying that Parliament should create an “inviolable liberty that protects political expression of any type that falls short of direct incitement from state interference.” 

The report lists a number of cases raised in recent years that have raised eyebrows over the scope of free speech in the UK including: 

• Bethan Tichborne, who was convicted of a public order offence for yelling at then-Prime Minister David Cameron, at a public event, that he had “blood on his hands” for cutting disability living allowance.

• In 2014, Eurosceptic EU Parliament candidate Paul Weston, who was arrested on suspicion of violating the Public Order Act for quoting Winston Churchill verbatim. 

• Darren Grimes, a conservative commentator, who in this year was investigated and threatened with an interview under caution by the Met for having conducted an interview with historian David Starkey in which Starkey — not Grimes — made highly offensive comments about slavery. After public outcry the investigation was dropped.

All of these individuals were subjected to mandatory interactions with law enforcement pursuant to the provisions of the Public Order Act 1986, which the think tank argues  excessively criminalizes offensive speech. 

The Report is especially cogent for Scotland where the Hate Crime Bill is currently going through the Scottish Parliament. The think tank recommends that Scottish Parliamentarians remove references in the Bill to “insulting” material and the word “abusive” in response to the experience of English magistrates in using and overbroad and imprecise use of the terms. The report’s author also recommends defining precisely the terms “threatening” in the proposed law to avoid cases arising where highly offensive but non-threatening speech meets a highly sensitive listener.

Meanwhile at Westminster the debate over Online Harms continues to raise substantial free speech concerns with the “Duty of Care” requirement for online companies that allow their users to interact with one another unsupervised. This would, the report author argues, “impose a duty on interactive computer service providers to prevent users’ feelings from being hurt.”

Much of the substance of both bills is already covered under existing legislation (including legislation covering terrorism and child sexual abuse) but the Government’s inclusion of ‘legal but harmful’ under the proposals risks creating an expansive, and poorly-defined, set of speech, with no legal definition, that an independent government regulator could deem “harmful” and force online service providers to remove from the Internet. 

To resolve the growing threats to freedom of expression, the Adam Smith Institute argues that Parliament should immediately:

1. Remove all references to “abusive” or “insulting” words and behaviour from Parts I and III of the Public Order Act 1986;

2. Replace the Section 127 of the Communications Act 2003 with (a) a provision that limits the scope of the existing rule to “threatening” only and (b) a new rule that addresses meaningful stalking and cyberstalking threats which cause or intend to cause substantial emotional distress, modelled after 18 U.S. Code § 2261A;

3. Repeal the Malicious Communications Act 1988 and replace it with a stalking statute; and

4. Introduce a United Kingdom Free Speech Act.

Report author and Legal Fellow at the Adam Smith Institute Preston J. Byrne  said:

“Basic political liberties including freedom of speech have been progressively eroded in the United Kingdom since 1997. Currently the Scottish Parliament and the Law Commission propose speech regulations which would be a more natural fit for Orwell’s Airstrip One than Churchill’s England. The sun is setting on the Enlightenment, and if Parliament does nothing to preserve free speech now we may lose it for generations.”

Andrew Rosindell M.P. said:

“Throughout history, societies have disagreed about the path forward. Ultimately there are two ways of resolving disagreements: violence, or free and open debate.

“For centuries our great nation has navigated choppy waters because of our commitment to the latter. With the flourishing of a free press, free speech, and a free economy, this nation has gone from strength to strength.

“The battle to preserve free speech is one every generation must fight. I fear that at the moment we are not doing enough to win this battle, as extremists from both ends attempt to stifle open inquiry. I fully endorse the work of organisations such as the Adam Smith Institute to re-examine our laws and norms in this matter of vital importance."

Darren Grimes, said:

“I back this vital Adam Smith Institute report and argue that the police investigation into an interview broadcast on my channel, with threat of arrest, should terrify anyone that cares about freedom of expression. This was an unprecedented use of public order legislation to target a member of broadcast media.

“As the report argues, through its current crop of laws, the United Kingdom is placing power in the hands of the easily offended, who can silence their opponents by threatening to report them to the police for daring to express unpopular opinions, challenge consensus or for daring to have uncomfortable conversations. This places an obvious chilling effect upon free, open and robust dialogue. 

“In the Miller v Humberside and College of Policing in the High Court earlier this year, a Judge likened police action over a tweet to the Stasi, the Cheka and the Gestapo. We can reverse this dangerous trend and restore trust and confidence in British policing by amending the law and reducing the police’s ability to criminalise people for expressing a view.

“Let’s get the law back to policing our streets, not our tweets.” 

Notes to editors:  

For further comments or to arrange an interview, contact Matt Kilcoyne: matt@adamsmith.org | 07904 099599.

The Adam Smith Institute is a free market, neoliberal think tank based in London. It advocates classically liberal public policies to create a richer, freer world.