Written evidence from the Adam Smith Institute (FOE0158)
Freedom of expression serves an important function in a democracy: the ability to express contrarian ideas allows us to explore controversial and important topics to strive for better understanding of the challenges we face and the underlying truth of our world. The contest of ideas, intellectual growth and discovery of truth is hampered by censorship.
The following is a short-form version of a longer report released publicly today. In the longer version the ASI answers all of the questions posed by the Committee in its call for evidence.
We believe existing law undermines freedom of expression in the United Kingdom and is in dire need of reform. We believe new laws proposed by the Law Commission, the Scottish Parliament, and the Government will undermine it further.
Does hate speech law need to be updated or clarified as shifting social attitudes lead some to consider commonly held views hateful?
Britain's speech laws infringe on freedom of expression and are becoming increasingly restrictive as social attitudes, among some, have shifted to consider more views to be “offensive,” “distressing” or “hateful.”
Britain already has several laws that seriously infringe on traditional conceptions of freedom of expression, including the Terrorism Act 2000 and 2006, the Public Order Act 1986, Communications Act 2003, and the Malicious Communications Act 1988. Emerging threats to freedom of expression include Law Commission hate crime and “Online Harms” proposals as well as the Hate Crime (Public Order) (Scotland) Bill. Each proposes new categories of speech crime or government-led speech regulation. These include new offences where, for example, the drafting of private correspondence containing offensive thoughts between two like-minded adults, and no one else, could constitute a criminal offence.
Current British speech code is designed to protect the heckler, not the speaker. It does this by creating subjective standards for speech regulation which are determined by the hearer, not an objective third party observer. Speech which would be legal among friends or simply among people with a higher tolerance for uncomfortable ideas becomes unlawful in the United Kingdom upon first contact with someone who takes offence. This is a deeply unsatisfactory state of affairs.
Older precedents tell us that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”[1] This view no longer prevails among the English judiciary. The issue in an environment where social attitudes are shifting rapidly - one where offensive words, or even silence itself, is equated to “violence,”[2] in some cases justifying a violent response - is that those who would carry out that violence are given a license to determine the boundaries of acceptable expression.
This is not a new phenomenon: since shortly after the much lauded free speech decision in Redmond-Bate v. DPP was handed down by Sedley LJ in 1999, English magistrates have routinely and consistently ruled that ordinary political speech, including straightforward expressions of traditional Christian morality, are unlawful.[3]
Dramatic reforms are urgently needed to restore the status quo from a mere 20 years ago.
Public Order Act 1986
The United Kingdom allows the easily offended and the fragile to threaten fellow citizens with fines and imprisonment for expressing unpopular opinions or having unpopular conversations.
● In 2008, a teenaged demonstrator eponymously known as “Epic Nose Guy” received a summons from the City of London police for refusing to put away a sign that read “Scientology is a Dangerous Cult” while protesting in front of the UK headquarters of the Church of Scientology on Queen Victoria Street in Blackfriars.
● In 2013, an Oxford university graduate, Bethan Tichborne, was convicted of yelling at then-Prime Minister David Cameron at a public event that he had “blood on his hands” for cutting disability living allowance.
● In 2020, Darren Grimes, a conservative commentator, was investigated and threatened with an interview under caution by the Met for having conducted an interview with historian David Starkey in which Starkey - not Grimes - made highly offensive comments about slavery. After public outcry the investigation was dropped.
All of these individuals were subjected to mandatory interactions with law enforcement pursuant to the provisions of the Public Order Act 1986. This law has been the primary vehicle for the easily offended to suppress political speech in the public square since Hammond v. DPP which, in 2003, essentially overturned – with little fanfare – the High Court’s much-lauded decision in Redmond-Bate v. DPP (1999).
The Public Order Act 1986 is capable of reform that would make it compatible with traditional notions of free speech, principally by removing any reference to the terms “abusive” and “insulting” from Parts I and III of the Act.
A free speech right of any consequence necessarily encompasses the right to intentionally offend. Removing the language that criminalizes causing offence (so that only “threatening” words continue to be proscribed) would achieve that aim. We note the term “abusive” has been held by English courts to be coextensive with the term “insulting” (which was removed from the statute by Parliament in 2013 following a public campaign by a number of English public figures including Stephen Fry).[4] As a result, the 2013 reforms should be regarded as having been largely cosmetic.
A note on the Law Commission proposals, Hate Crime (Public Order) (Scotland) Bill, and ‘Online Harms’
There are a number of current proposals for new legal rules that would, if enacted, impact freedom of expression in the United Kingdom.
The parts of these reforms that do not directly impact speech are unobjectionable. This includes the Law Commission’s suggestion to retain bias enhancements on offenses against the person.
We object, however, to any suggestion that new speech crimes are warranted under any circumstances. We object to the criminalization of political speech, no matter how extreme, where that speech is not directed towards the incitement of imminent lawless action and is not likely to incite or produce such action.
We repeat the concerns of the Free Speech Union, as set out in their document “Ten Reasons to Throw Out the Law Commission’s Anti-Free Speech Proposals,” which points out that the Law Commission’s report suggested that law reform should be directed towards making publication of content like the “infamous” Charlie Hebdo or Jyllands-Posten cartoons - each of which gave rise to terrorist violence directed at innocent civilians - illegal on British soil. Terrorism is the most desperate form of heckler’s veto. Criminalizing expression that provokes terror in hopes that the terror will be appeased, as the Law Commission appears to suggest we should, is moral cowardice.
Similarly, regarding the Hate Crime (Public Order) (Scotland) Bill, there are free speech implications for bias enhancements for common law crime. The Bill suffers from all of the shortcomings of Part III of the Public Order Act 1986 after which it is modelled, and worse.
At minimum, the Bill’s references to “insulting” and “abusive” material should be removed. We vociferously object to the existence of an offence of “possessing inflammatory material” under Section 5 of the Bill, a provision which – if enacted – could criminalize common everyday communication such as the sharing of offensive Internet memes, or writing letters, even before the letters were sent, even if the recipients of the letters wished to receive them and even if such persons not offended by them. The Scottish proposal to repeal the dwelling exception found in the current version of the Public Order Act 1986 is simply outrageous.
The Government’s proposed ‘Online Harms’ regime raises substantial free speech concerns. The Online Harms proposals would create a bizarre “Duty of Care” - a tort law concept pertaining to negligence, twisted and warped to apply to government oversight of “harmful” public expression - on any online company that allows users to interact, enforced by a new regulator.[5] This “Duty of Care” would require the online platform to essentially baby-sit its users and impose a duty on interactive computer service providers to prevent users’ feelings from being hurt.
There are some categories of material covered by the Online Harms proposal (e.g. terrorist content and CSAM) which are already banned by law and would also be included within the scope of the Online Harms legislation. We do not object to that material continuing to be regulated off of the Internet. However, and bizarrely, the Government has included ‘legal but harmful’ speech within scope of this inappropriately-named “duty of care”. If enacted we see significant potential for abuse.
Communications Act 2003, Section 127
Section 127 criminalizes the sending of a communication “that is grossly offensive or of an indecent, obscene, or menacing character.” It also criminalizes sending false information with the intent that another be caused “annoyance, inconvenience, or needless anxiety.”
This statute has been widely abused by social media users to procure the arrests of people with whom they disagree online.[6] See e.g. the arrest and conviction of popular Scottish YouTuber and Twitter user Mark Meechan, a/k/a “Count Dankula,” for a videotape of his pet dog performing tricks that were highly offensive and in extremely poor taste, but ultimately entirely non-threatening. Over 400 people were arrested in London alone over the last 5 years under the guise of making communications of an “offensive nature,” sending an “offensive message” and sending a message containing “false information”.[7]
To protect freedom of expression, the Government should rework the prohibition under Section 127 to address threatening communications only. For other forms of cyber-harassment we recommend the adoption of a statute similar to the U.S.’ federal cyberstalking statute under 18 U.S. Code § 2261A, which criminalizes “a course of conduct that… places that person in reasonable fear of the death of or serious bodily injury to a person...; or… causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress” in the victim. (Emphasis added.) This is an objective, rather than subjective standard and one which has a substantially higher threshold than the current requirement that a communication cause mere “annoyance or anxiety” before criminal liability is imposed.
Malicious Communications Act 1988, Section 1
The Malicious Communications Act criminalizes the conveyance of communications which are “indecent or grossly offensive; a threat; or information which is false or believed to be false” if the sender’s “purpose, or one of his purposes, in sending it is that it should… cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.”
Much like the Public Order Act and the Communications Act, the Malicious Communications Act is uniquely susceptible to abuse and overbroad application, the effect of which is and will continue to be a “chilling effect” on freedom of expression. The Malicious Communications Act 1988 should be repealed in its entirety, threats should be covered in the replacement to Section 127, and both statutes’ provisions regarding harassment should be replaced with a stalking statute similar to 18 U.S. Code § 2261A.
A United Kingdom Free Speech Act
Parliament should, in addition to these reforms, explore providing express, blanket statutory protection from government interference - by which we mean discriminatory treatment by any state agency, government funded body or ‘Quango’ - for political speech that does not constitute incitement or is otherwise expressly illegal under common law or statute (such as criminal threatening, harassment, defamation, or lying under oath).
The Free Exercise Clause of the First Amendment to the United States’ constitution should be a model for this statutory provision.
This is a complicated task. We offer no suggestions for how such legislation should be worded, save that in our view Parliament should seek to make the protection for political speech as permanent and inviolable as United Kingdom constitutional conventions will permit.
Conclusions
The Government asked a number of questions in its request for comment, of which this brief note addresses only the first. We have responded to all of the Government’s questions more fully in our public report.
As Sedley LJ opined in Redmond-Bate, “Freedom only to speak inoffensively is not worth having.” The people of the United Kingdom deserve freedom of speech, can be trusted with it, and it is the role of Parliament to protect and expand it. However, our conclusion, on a reading of the United Kingdom’s speech codes, given their plain and ordinary meaning and as interpreted by case law, the people of the United Kingdom do not have it.
29/01/2021
[1] Handyside v. United Kingdom, App. No. 5493/72.
[2] See e.g. “Police order removal of 'white silence is violence' banner in London.” The Guardian, 23 July 2020. https://www.theguardian.com/uk-news/2020/jul/23/police-order-removal-of-white-silence-is-violence-banner-in-london
[3] Hammond v. DPP [2004] EWHC 69 (Admin).
[4] See Abdul v. DPP (2011) at paragraph 29.
[5] https://www.gov.uk/government/consultations/online-harms-white-paper/public-feedback/online-harms-white-paper-initial-consultation-response
[6] See e.g. “Arrests for offensive Facebook and Twitter Posts Soar in London,” The Independent, 04 June 2016 https://www.independent.co.uk/news/uk/arrests-offensive-facebook-and-twitter-posts-soar-london-a7064246.html