Freeing speech

Covenants at Loudon Hill

Free speech is a rallying cry, from those who believe in it, and those who are hypocritical about it. It is easy to cry for freedom to say what I want to say, and then in power to suppress everyone else, their ideas being “disinformation”, “fake news”, “hate speech” and “slander”. In any Project ’29, freeing speech, unhypocritically, must be an early aim.

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 with 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.

If you take the view that words alone should not found a prosecution, consider these:

  • Aiding, abetting, counselling and procuring, and inchoate offences of encouraging, assisting and conspiring to commit an offence;
  • “Let him have it, Chris!”
  • Shouting “Fire!” in a crowded theatre
  • Contempt of court
  • Telling a blind man that it is safe to cross the road.

Care must be taken therefore in broad principles.

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

Acts which criminalise speech in a way that should be repealed or drastically reformed, include:

  • 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.
  • Communications Act 2003, Section 127
  • Hate Crime and Public Order (Scotland) Act 2021
  • (Aggravated offence under the Crime and Disorder Act 1998, Sections 28 to 32 and sentencing factors in the Sentencing Act 2020, Section 66)

(In terms of aggravated offences, the Crown Prosecution Service say “There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.” That, if not repealed, could be tightened up.)

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 Act 1351 and Treason Felony Act 1848
  • Incitement to Disaffection Act 1934
  • Contempt of Court Act 1981 (currently under review by the Law Commission)
  • 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 can 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 (although unhistorically) 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 before we had social media,. Since then, the Act has been taken to have a far wider application. The Act on its face refers only to things posted to a specific recipient, but has been taken to include posting on social media. The net was explicitly 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 Twitter arrests that have caused outrage.

A difference must be drawn between a personally addressed letter, or email, and a general shout at the world. The Acts as they are read take the wider view, 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 alone conviction (unless they are actually soliciting murder, Lucy). However the arrests keep coming, 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, we will have 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, so after the next election the new Parliament (if supporters of free speech have a majority) could pass a shorter Bill to cauterise the worst laws.

The target remains a codifying ‘Speech Bill’ covering the whole area. It should gather the specific statutes – the Public Order Act, the Malicious Communications Act and Communications Act and all their kin – and repeal their relevant sections, replacing them with a simple code. The code must be written in plain language, without the weasel phrases that civil servants love to slip in, like “as far as is reasonable”, “as appropriate”, “substantially” and the like, leaving even the most ardent activists unable to twist their meaning. It must definitely not hand regulatory powers to ministers or Ofcom. That Bill is a project within Project ’29.

See also

Books