I was caught off guard by the warm reception of my latest ASI paper: Sense and Sensitivity: Restoring free speech in the United Kingdom.
It was covered by Guido and the Telegraph, as well as shared thousands of times across multiple platforms. A number of political types have also reached out to express interest in discussing these ideas further. I couldn’t be happier to see people so engaged.
But it occurs to me, 72 hours later, that I forgot something.
The paper called out government shenanigans with freedom of expression and proposed for five concrete policy changes:
Removing the words “abusive” and “insulting” from the Public Order Act 1986.
Limiting the scope of Section 127 of the Communications Act 2003 to threatening language only.
Replacing the harassment component of Section 127 of the Communications Act 2003 and the Malicious Communications Act with a harassment/cyberstalking statute similar to 18 U.S. Code § 2261A, with its higher thresholds for criminal conduct as a replacement.
Repealing the Malicious Communications Act 1988.
Enacting the UK Free Speech Act.
Item 5 is where I came up short. I didn’t offer any proposals for what the UK Free Speech Act might actually say, although I did state what I thought it should seek to accomplish.
I am cognizant that a discussion draft is always a more helpful starting point than a proposal. Therefore, for discussion purposes, I propose the following:
UK FREE SPEECH ACT [2021]
An Act to secure the free and open flow of information and ideas for the people of the United Kingdom.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
SECTION 1. FREEDOM OF SPEECH
(1) The right of any person, and of the people, to freedom of speech shall not be violated by the state.
(2) Freedom of speech encompasses but is not limited to the right to engage in spoken or written expression of any idea pertaining to any matter of public interest, morality, philosophy, or politics, which is not a threat or direct incitement.
(3) “Direct incitement” means speech or writing which is directed towards inciting or producing imminent lawless action and is likely to incite or produce such action.
(4) Schedule 1, Part I, Article 10 of the Human Rights Act 1998 is hereby repealed.
And that’s it.
The text here is not designed to be all-encompassing, but rather to permit the judiciary to do its job in ascertaining the proper application of the statute in situations which Parliament may not have intended or been able to conceive of at such time that a Bill like this was passed.
Section 1(1) states that “freedom of speech” is not to be violated. The right is expressed to be both individual and collective. The exact boundaries of this right are left to be determined by the judiciary. It is expressed to be enforceable against the state. This should be read as applying to any public body and any private body performing a public function, and not to any other private body or private person. The exact details, including standards of judicial scrutiny to state actions which infringe these rules should be left to the courts, which are toying with playing a greater constitutional role (see e.g. the 2019 prorogation of Parliament) and will eventually do so one way or another.
Section 1(2) states an irreducible core of the new freedom of speech which cannot be restricted in nearly any circumstance, and which protects speech on matters of public concern which are neither a threat nor direct incitement. It limits itself to speech or writing and deliberately does not address weird performance art or the assembly of objects e.g. Tracey Emin’s Unmade Bed. This section does so because speech and writing which is neither threatening nor incitement is the least likely type of expression to cause any person to suffer direct physical harm or to create standard-of-review constitutional issues that British courts are, doctrinally speaking, poorly equipped to address. These forms of expression are also easy to avoid by those who do not wish to read or listen to them.
The wording should grant latitude for the courts to both expand the right where appropriate (as in the case of performance art) and restrict it in the case of private concerns (e.g. harassment or defamation) while also drawing a bright red line around speech which is most essential and most threatened by the Law Commission and the Scottish Parliament. But above all this sub-section would ensure that the core right – to speak and write – cannot be touched.
Section 1(3) incorporates the “imminent lawless action” test from Brandenburg v. Ohio, 395 U.S. 444 (1969), which operates to limit the scope of speech protection to only that speech which is likely not to incite others to commit a crime while also permitting advocacy which is unlikely to cause incitement. This is designed to bring the English system “up to speed” with the only system of speech regulation in the world that has so far held up in the face of censorial onslaughts for several hundred years. In other words, it allows the courts to stop truly dangerous people but prevents them from doing much about the merely annoying. The inclusion of this definition is necessary to abolish any common law residuum from the decades-long political misuse of the Public Order Act 1986 and similar rules.
Section 1(4) repeals Article 10 of the Human Rights Act and the European Convention. The right contained in this UK Free Speech Act is more robust than the Article 10 right and supersedes it, so the Act might as well repeal it. The rest of the Human Rights Act, which can just as easily be used to curtail rights as expand them (see the lengthy list of derogations permitted in the name of Article 10(2), for example) should eventually be scrapped and replaced with robust, enforceable civil liberties protections in domestic law similar to this one.
And that’s my proposal, offered for discussion and your reading enjoyment. Happy to hear anyone’s thoughts on its content. I’m easy to find.