Sense and Sensitivity: Restoring free speech in the United Kingdom
The Adam Smith Institute’s latest paper, by Legal Fellow Preston J. Byrne, makes the case for introducing First Amendment-style free speech protections in the United Kingdom:
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. 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.
The UK’s protection of freedom of expression, revolving around Article 10 of the European Convention, is woefully inadequate. Existing laws, as applied, have created categories of “speech crimes” for offensive but otherwise benign political speech.
Britain already has numerous laws that infringe on freedom of expression, including the Public Order Act 1986, Communications Act 2003, Terrorism Act 2000 and 2006, the Malicious Communications Act 1988.
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. See e.g. the treatment of Darren Grimes in June of this year compared to the treatment of offensive speech in the landmark 1999 case of Redmond-Bate v. DPP. The poor drafting of existing law means that as social attitudes shift, broader categories of speech are criminalized as “offensive,” “distressing” or “hateful.”
The United Kingdom has placed public discourse in the hands of the easily offended, who have the power to threaten fellow citizens with fines and imprisonment for expressing unpopular opinions or having uncomfortable conversations.
There are also 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. Each proposes broad new categories of speech crime or speech regulation not known to law before today. These include 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.
To resolve the growing threats to freedom of expression, Parliament should immediately:
remove all references to “abusive” or “insulting” words and behaviour from Parts I and III of the Public Order Act 1986;
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;
repeal the Malicious Communications Act 1988 and replace it with aforementioned stalking statute; and
introduce a United Kingdom Free Speech Act.
The UK Free Speech Act should be modelled on the First Amendment of the Constitution of the United States and relevant jurisprudence that protects all political speech from state interference unless it is part of longstanding categories of low value speech which are not protected anywhere in the world (such as criminal threatening, harassment, malicious defamation, perverting the course of justice, or perjury) or is direct incitement, i.e. a statement which is directed towards inciting or producing imminent lawless action and is likely to incite or produce such action.