Freeing speech in Project ’29

The first principles we gave for Project ’29 are:

  • Increasing individual freedom, with a view to making Britons the freest people in the developed world, in terms both of freedom from state compulsion, and freedom from compulsion by others.
  • Reducing the interference of the state in everyday personal and commercial life.

Speech has become a “yes, but” freedom. It is honoured by all politicians, but in action they caveat it so far as to make their words empty.

Amongst politicians, there may be honest reasons to want to zip mouths, as well as dishonest ones, but honest reasoning is insufficient to justify restraints. Those in a free society must accept that  our neighbours will be able, with impunity, to say the uncomfortable and offensive.

(Interestingly, there was a good article by Nick Robinson on the BBC, not an organisation usually known for its love of liberty and heterodoxy, which looks at the issues wit sensitivity.)

A freer people

The principle of making Britons the freest people in the developed world requires a repeal of restrictions on speech from the very start.  That requires two things:  a philosophical determination of where the line is drawn, and the practical work of seeing where the restrictions are.

It would be easiest if the criminal law were logically codified. It is not – far from it. Restrictions are scattered all across the statute book.

As to drawing the line, it is generally agreed that promoting violence should be prohibited, and then ideas diverge. Lord Denning suggested:

words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects

Other considerations

Lord Denning’s wisdom was considering words targeting groups only,  and not words addressed directly to an individual. These too must be considered.

Insult should not be enough to make a crime – Blair made it so, and a campaign (“Feel Free to Insult Me”) was needed to reverse it. Threats though? A famous Restoration-era judgment made a good distinction which we observe to this day:  it is common assault to put a man in fear of imminent violence – but when a man put his hand on his sword and said “If it were not assize time, I would not take such words from you!”, he was not guilty – much virtue in “if”.

What about obscene letters in the post? Those are beyond the pale, even without immediate violence, as putting someone in fear in the very confines of her home. These are all factors in determining individual provisions.

In addition one must not forget fraud, conspiracy, and those inchoate crimes – aiding, abetting and inciting a crime. All are speech, but very different from mere ‘hurty words’. The debate is on ‘hate speech’ – but if a liberty-loving House of Commons were to say ‘Nothing spoken or written is a crime unless…’ then these would have to be included

Getting back to ‘hate speech’; a few years ago, the Law Commission were given the task of examining a rationalistion of hate speech laws. They took to it with zeal, on the assumption that such laws are good and to be extended. Project ’29 can borrow their research but to take it in the other direction – not to repeal all, but to consolidate to set a standard consistent with individual freedom.

Restrictions under the ‘hate speech’ category and related fields

  • Public Order Act 1986, Section 4A and 5 and Sections 17 to 29N
  • Malicious Communications Act 1988, Section 1(1)(b)
  • Football (Offences) Act 1991.
  • Crime and Disorder Act 1998, Sections 28 to 32
  • Communications Act 2003
  • Criminal Justice Act 2003, Section 127
  • Hate Crime and Public Order (Scotland) Act 2021

Others which have been causes célèbres in their time should be left in peace, or be restated, as serving a useful purpose, such as:

  • Treason Felony Act 1848
  • Incitement to Disaffection Act 1934
  • Obscene Publications Act 1959, and various other Acts concerning such distasteful subjects

The names of the Acts to be examined give an idea of their purpose: public order. That is a good public purpose in general, but cannot justify everything done in its name. Mission-creep has extended the Acts by amendment and interpretation. It must be rolled back.

The Malicious Communications Act is a replacement of the Act that sought to punish the posting of poison-pen letters. The 2023 film Wicked Little Letters described an infamous case in the 1920s. The film played the events for laughs, but the letters were deeply wounding, and broke a village.

The poison-pen laws were brought up to date by the 1988 Act, to cover emails, but has been taken to have a far wider application. The Act seems to refer only to things posted to a specific recipient, but has been taken to include social media. Indeed, the net was widened by Section 127 of the Communications Act 2003, covering not just messages to a specific recipient, but any “message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. All this has provided the feeble excuses used for the various Twitter arrests that have caused outrage.

There must be a difference between a personally addressed letter, or email, and a general shout at the world. The Acts though are read wider than that, or at least the police and Crown Prosecution Service read them more widely: “any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature” can cover anything, if a policeman wants it to. That must be fixed.

The police and the comic

No one with any level, honest view could think that Graham Linehan committed an offence. Perhaps if he does sue the Metropolitan Police, we could learn in evidence some of the chain of orders that led to it. Was a senior officer, one who has faced knives and bullets in the dark, now afraid of a diversity adviser? What internal, compulsory guidance do they have, and does this accord with actual law?

Very few of the arrests for social media posts appear to result in prosecution, let along conviction (unless they are actually soliciting murder, Lucy). That does not stop the arrests, where the process is the punishment. The same can be said for street preachers, seized from the streets while preaching the gospel, thrown in a cell and let go again.

The law may be unclear to the police, or ambiguous enough that they are unable to say “no” to the diversity advisers. It needs clarification therefore.

Action

Ideally, a single Act of Parliament which repeals every piece of legislation making a crime of any expression, verbal, written or drawn, except as set out in the new Act, and which sets out a comprehensive codification of the law.

However that will take time. The immediate issue is how to return to liberty of expression in matters of social and political controversy. In that case, the new Parliament (if supporters of free speech have a majority) should gather the specific statutes – the Public Order Act, the Malicious Communications Act and Communications Act and their kin, and to relace their sections with a simple code, leaving even the most ardent activists unable to twist their meaning. That is a project for Project ’29.

See also

Books

Author: AlexanderTheHog

A humble scribbler who out of my lean and low ability will lend something to Master Hobbes