185 - Free Speech - gone?

We claim, in both the US and the UK that free speech is an essential, even defining, attribute of our society. Yet I don’t think we have it and I’m not at all sure we really want it.


Free speech is the right to express opinion without restraint. As such it is likely to cause offence; that offence is the subsequent controller of the freedom to speak your mind. Freedom of expression (wikipedia tells me) is the related issue of expressing ideas in other media than speech, which itself apparently includes other direct forms of communication such as writing.

Free speech was established in the UK following the Magna Carta, though the document is quite silent upon the topic. Magna Carta as a brand of sorts (see) is a different story1. The post-war Declaration of Human Rights [1948] gives us a more clear statement, followed by the [1953] European equivalent2. Article 10 of the (UK) Human Rights Act 1998 explains the term freedom of expression:

1  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Notice that the second clause allows for limits to be imposed, so freedom of expression (speech included there) was always curbed. We wouldn’t, I think, want to support slander or libel and in Britain we have a long history of law that defines what those limits are (or have become).


Americans have a simpler situation, stemming from the 1st Amendment [1791] to the constitution [1787]:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are several (many) acts clarifying this, but wikipedia helpfully includes this, from Thurgood Marshall in 1972:

Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfilment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'

That article goes on to list types of speech [core political, commercial, expressive conduct] and types of speech restriction [on content; on time, place & manner; incidental burdens; prior restraint] and specific exclusions [quite a list3].


We have a long list of curbs upon free speech in the UK and a similar list curbing behaviour. Can you still lose your job for being gay? for wearing a jihab? any ‘wrong’ clothing? Can you garner public censure for being any sort of ‘extremist’? for causing some other body to express distaste / unease / resentment / dislike at your remarks? is the Press the guardian of free speech or is it a self-proclaimed judge of what we are allowed to say?

Wikipedia has a page covering just this topic, listing restrictions by country. Looking specifically at Britain, so often celebrated as a source of free speech, we can see how very untrue such a belief is. At heart in Britain there is an assumption of freedom of expression not enshrined or limited by laws—there is no Bill of Rights; this is now ruled by European law, but it remains true that British law takes precedence (except when it doesn’t, apparently) and domestic law is presumed to supply effective remedy [Three Pillars of Liberty, Klug, Starmer & Weir, 1996]. Indeed,

the rights of ordinary people in the UK are for the most part ‘negative’—that is, rights to be protected from interference by others rather than positive rights, say, to publish a controversial article or to join a protest march.

This idea of negative rights is quite a valuable one, for it means that the list of what is restricted should be relatively easy to discover. Moreover, establishing some principles for what it is that one could expect to be restricted should be fairly straightforward.


Speaking for myself I understand the social convention to be that we don’t usually discuss religion or politics in public; that we strive not to give offence, but at the same time make clear that some things are expressed and personal opinions (and opinions are, of course, open to being changed); we have a convention of striving to agree (to be agreeable) and confrontation is very un-British, which is why confrontational behaviour is so shocking in Britain; rudeness itself is frowned upon—and the cost of that is, usually, honesty.


I have copied the entire wiki entry Freedom_of_speech_by_country#United_Kingdom below4 and selected from that for this patch in blue;


United Kingdom citizens have a negative right to freedom of expression under common law. In 1998, the United Kingdom incorporated the European Convention into its domestic law under the Human Rights Act. However, there is a broad sweep of exceptions including:


  1. 1.threatening, abusive or insulting words or behaviour intending or likely to cause harassment, alarm or distress or cause a breach of the peace (which has been used to prohibit racist speech targeted at individuals),

  2. 2.sending any article which is indecent or grossly offensive with an intent to cause distress or anxiety (which has been used to prohibit speech of a racist or anti-religious nature),

  3. 3.incitement, incitement to racial hatred, incitement to religious hatred, incitement to terrorism including encouragement of terrorism and dissemination of terrorist publications, glorifying terrorism, collection or possession of a document or record containing information likely to be of use to a terrorist,

  4. 4.treason including advocating for the abolition of the monarchy (which cannot be successfully prosecuted) or compassing or imagining the death of the monarch,

  5. 5.obscenity, indecency including corruption of public morals and outraging public decency,

  6. 6.defamation, prior restraint, restrictions on court reporting including names of victims and evidence and prejudicing or interfering with court proceedings, prohibition of post-trial interviews with jurors, scandalising the court by criticising or murmuring judges, time, manner, and place restrictions, harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, and limitations on commercial speech such as advertising. [much as the equivalent US list].


UK laws on defamation are among the strictest in the western world, imposing a high burden of proof on the defendant. However, the Education Act (1986) guarantees freedom of speech (within tertiary schools) as long as it is within the law. UK defamation law may have recently experienced a considerable liberalising effect as a result of a ruling in 2006. This revived the so-called Reynolds Defence, in which journalism undertaken in the public interest shall enjoy a complete defence against a libel suit. Conditions for the defence include the right of reply for potential claimants, and that the balance of the piece was fair in view of what the writer knew at the time.


So do we have free speech? The principle to apply in Britain is that you strive not to offend the people with whom you are talking. On the face of things that is to avoid disagreement, argument and an unseemly display of emotion. There are acceptable social situations where opinion is allowed and even encouraged, such as public debate, where one might take a stance irrespective of belief so as to make the strongest possible argument. Much of what we call comedy in Britain takes a situation and exaggerates it to point out sillinesses; indeed, comedy is a great way to affect public opinion. We use comedy to point out ways in which our behaviour, while acceptable, is based on flawed thinking and so it is an effective vehicle for change, perhaps even more so than politics. [Why? Because politics is ‘serious’, threatening and so obviously biased by the standpoint of the speaker: Comedy is played for laughs and political comedy is ‘against’ everyone, indiscriminately. We tend to disbelieve a politician but the space in which a comedian works is entirely based upon assumption that the bulk of the subject is common knowledge.] We have different  social rules when in private, which is why so much damage is done with hidden recordings (a sort of theft, I think) that are then subject to public scrutiny when never meant as such. I feel eavesdroppers usually get what they deserve and thus I detest it when such people quote and publish. These are not leaks, these are breaches of privacy. My opinion, which of course you are welcome to try to change.


If you want to test whether you have free speech, try gently pushing the boundaries by talking about it. I suggest that testing it by saying radical things will cause you to find out by losing friends; talking about what sort of phrase might offend, this providing a context in which the boundaries are being tested co-operatively, seems to me slightly safer, unless overheard.

DJS 20160101


I’m trying to use black for general content, brown for quotes, blue for modified quotes and red for opinion. Which causes me to wonder what opinion is and what it is that turns black into red. Is the red the bit that might cause offence?


Sites visited (I really mean recorded, don’t I?):

http://www.thetimes.co.uk/tto/opinion/columnists/article4649909.ece Matthew Parris on form. He knows about this topic, having worked for various bodies that worry about the freedom of speech.

http://findlaw.co.uk/law/government/constitutional_law/fundamental_rights/500150.html

https://en.wikipedia.org/wiki/Freedom_of_speech

http://www.bl.uk/magna-carta/articles/magna-carta-in-the-modern-age

http://www.economist.com/blogs/erasmus/2015/10/faith-and-free-speech-britain

https://books.google.co.uk/books?id=8LqIAgAAQBAJ&pg=PA37&source=gbs_toc_r&cad=2#v=onepage&q&f=false


1 I was aware that King John signed the Magna Carta under duress; all film I’ve seen suggests that he was not a nice guy and that the barons were right. I read here that the Pope annulled the document (apparently he could do that). Yet Britain, famously with no codified constitution, uses ‘Magna Carta’, the label, as if it signifies the creation of freedom of speech. Edward 1 confirmed the 1225 version of the charter in about 1297, though virtually none of that remains as law.


2    the long title is European Convention for the Protection of Human Rights and Fundamental Freedoms See more at: http://www.bl.uk/magna-carta/articles/magna-carta-in-the-modern-age#sthash.3gY8UAWj.dpuf


3   Here is that list, shortened to little more than titles

Inciting imminent lawless action Such speech was originally banned under the weaker clear and present danger test but this test has since been replaced by the imminent lawless action test The canonical example is falsely yelling "Fire!" in a crowded theatre. This is an example of immediate harm.

Fighting words;       True threats;       Child pornography;

Obscenity is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.

Torts  [Defamation, Invasion of privacy, Intentional infliction of emotional distress]

Commercial speech If this test is satisfied, the law will be upheld:

The speech regulated is fraudulent, misleading, or proposes an illegal transaction; or

All of the following elements are present:

The government's interest in regulating the speech is substantial;

The restriction directly advances the government interest; and

The restriction is no more extensive than necessary to advance the government interest.

This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company).

Political spending;    Government speech;    Public employee speech;    Student speech;   

National security;    Military secrets Inventions ;    Nuclear information;     Weapons

...and to this we can add (I say) a growing list of curbs across the internet, where people have apparently assumed that no restrictions apply. Obviously there is a conflict between the forces arguing for restriction more than that above, which is mostly those recognising that the young have largely open access (and failing in parenting to curb that) and those who continue to feel that here is a space where the lowest international standard must be applied, hopefully none whatsoever. That would recognise the huge market on the ‘net for porn in its many forms and in turn decrees there is no limit upon that. Except as imposed by market forces, perhaps.


4 This is the wikipedia entry: shorn of links and citations: if you want them, go read it through the link given:

United Kingdom citizens have a negative right to freedom of expression under common law.In 1998, the United Kingdom incorporated the European Convention, and the guarantee of freedom of expression it contains in Article 10, into its domestic law under the Human Rights Act. However, there is a broad sweep of exceptions including threatening, abusive or insulting words or behaviour intending or likely to cause harassment, alarm or distress or cause a breach of the peace (which has been used to prohibit racist speech targeted at individuals), sending any article which is indecent or grossly offensive with an intent to cause distress or anxiety (which has been used to prohibit speech of a racist or anti-religious nature),incitement, incitement to racial hatred, incitement to religious hatred, incitement to terrorism including encouragement of terrorism and dissemination of terrorist publications, glorifying terrorism, collection or possession of a document or record containing information likely to be of use to a terrorist, treason including advocating for the abolition of the monarchy (which cannot be successfully prosecuted) or compassing or imagining the death of the monarch, sedition (no longer illegal, sedition and seditious libel (as common law offences) were abolished by section 73 of the Coroners and Justice Act 2009 (with effect on 12 January 2010)), obscenity, indecency including corruption of public morals and outraging public decency, defamation, prior restraint, restrictions on court reporting including names of victims and evidence and prejudicing or interfering with court proceedings, prohibition of post-trial interviews with jurors, scandalising the court by criticising or murmuring judges, time, manner, and place restrictions, harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, and limitations on commercial speech such as advertising.


UK laws on defamation are among the strictest in the western world, imposing a high burden of proof on the defendant. However, the Education (No. 2) Act 1986 guarantees freedom of speech (within institutions of further education and institutions of higher education) as long as it is within the law (see section 43 of the Education (No. 2) Act 1986). UK defamation law may have recently experienced a considerable liberalising effect as a result of the ruling in Jameel v Wall Street Journal in October 2006. A ruling of the House of Lords—the then highest court of appeal—revived the so-called Reynolds Defence, in which journalism undertaken in the public interest shall enjoy a complete defence against a libel suit. Conditions for the defence include the right of reply for potential claimants, and that the balance of the piece was fair in view of what the writer knew at the time. The ruling removed the awkward—and hitherto binding—conditions of being able to describe the publisher as being under a duty to publish the material and the public as having a definite interest in receiving it. The original House of Lords judgment in Reynolds was unclear and held 3–2; whereas Jameel was unanimous and resounding. Lord Hoffman's words, in particular, for how the judge at first instance had applied Reynolds so narrowly, were very harsh. Hoffman LJ made seven references to Eady J, none of them favourable. He twice described his thinking as unrealistic and compared his language to "the jargon of the old Soviet Union."


The Video Recordings Act 2010 requires most video recordings and some video games offered for sale in the United Kingdom to display a classification supplied by the BBFC. There are no set regulations as to what cannot be depicted in order to gain a classification as each scene is considered in the context of the wider intentions of the work; however images that could aid, encourage, or are a result of the committing of a crime, along with sustained and graphic images of torture or sexual abuse are the most likely to be refused. The objectionable material may be cut by the distributor in order to receive a classification, but with some works it may be deemed that no amount of cuts would be able to make the work suitable for classification, effectively banning that title from sale in the country. Cinemas by convention use BBFC classifications, but recordings refused a classification by the BBFC may still be shown in cinemas providing the local authority, from which a cinema must have a licence to operate, will permit them.


© David Scoins 2017