Speech isn’t ‘free’!
In 2008 Sir Ken Macdonald, QC, when Director of Public Prosecutions (DPP), gave a speech about free expression and the rule of law the Birmingham Law School. In the speech he addressed whether there are or should be appropriate limits to free speech, the approach of the criminal law, over time, to this issue and the role of prosecutors. Abridged parts of this speech on ‘free expression and the rule of law’ are included in the following.
In his opening remarks on ‘Free Expression and the Rule of Law’, the DPP stated that for such a cherished freedom, its exercise is often redolent with controversy and violence. It can leave in its wake suffering and even death on a very grand scale.This paradox underscores the drama and danger inherent in the shifting line between freedom and security. For prosecutors this is epitomised by public debate around decisions to prosecute or not, with these debates extending far beyond the criminal law. We all acknowledge that rights have consequences and come with responsibilities. But that may be where broad agreement ends. There are those who think that free speech should be upheld at almost any cost, even where public safety may be threatened by its exercise. And there are others who believe that the law should criminalise speech that may not stray much beyond offensiveness. That the law should act to protect peoples’ feelings. As though politeness were a legal rather than a social obligation.
Until just forty years ago there was no legally enforceable right to free speech in this country. Freedom of expression was an exceptional freedom rather than a positive right. This meant that there was no legally binding standard against which to interpret restrictions upon free speech, either in Acts of Parliament or at common law.We lacked a constitutional Bill of Rights protecting the right to freedom of expression.
Nowhere was this inherent restriction on the freedom of speech put more succinctly than by A. P. Herbert in his parody of the Lord Chancellor’s 1927 ruling on the case of Engheim, Muckovitch, Kettelburg, Weinbaum, and Oski v. R.¹ The ruling in this case was in response to a petition by certain British subjects, made under the Bill of Rights, and referred by the Crown to the Privy Council. This was a petition to the Crown by certain members of a political party who were convicted of holding a public meeting in Trafalgar Square contrary to the orders of the Home Secretary and police. They were prosecuted and fined, and sought a gracious declaration from the Throne that these proceedings were in violation of the liberties of the subject as secured by the Bill of Rights, and in particular of the rights, or alleged rights, of Public Meeting and Free Speech.
The Lord Chancellor ruled that there are, in fact, few things, and those rapidly diminishing, which it is lawful to do in a public place, or anywhere else. But if he is not allowed to do what he likes, how much less likely is it that the subject will be permitted to say what he likes! For it is generally agreed that speech is by many degrees inferior to action, and therefore, we should suppose, must be more rigidly discouraged. Our language is full of sayings to that effect. ‘Speech is silver‘, we say, and ‘Silence is golden‘; ‘Deeds—not words’; ‘Least said—soonest mended‘; ‘Keep well thy tongue and keep thy friend* (Chaucer); ‘For words divide and rend,’ said Swinburne, ‘but silence is most noble till the end‘; ‘ “Say well” is good, but “Do well” is better’; and so on. There never can have been a nation which had so wholesome a contempt for the arts of speech; and it is curious to find so deeply rooted in the same nation this theoretical idea of freedom and unfettered utterance, coupled with a vague belief that this ideal is somewhere embodied in the laws of our country. No charge was made in this case of seditious, blasphemous, or defamatory language, and in the absence of those the petitioners claim some divine inherent right to pour forth unchecked in speech the swollen contents of their minds. A Briton, they would say, is entitled to speak as freely as he breathes. I can find no authority or precedent for this opinion. There is no reference to Free Speech in Magna Carta or the Bill of Rights.
The DPP ( Sir Ken Macdonald, QC) contended that was certainly arguable that in those days English courts placed too little emphasis on free speech and gave too much weight to restrictions on that right.There was no statutory framework to guide the courts in human rights cases. Parliament itself was undoubtedly a little too indifferent to the lack of effective legal protection. But in 1966, the Government decided that complaints of breaches of the European Convention on Human Rights on the part of UK public authorities could be made to the European Commission and the European Court of Human Rights.The introduction of the Human Rights Act 1998 took this process a critical stage further. It requires all existing and future legislation, so far as possible, to be read and given effect to in a way that is compatible with Convention rights- including the right to freedom of expression. Thus the Human Rights Act strongly asserts the right to speak freely, but pragmatically balances this right with the requirement for states to provide for their citizens’ protection.
Continuing the DPP said that you can think what you like though expressing an opinion at a particular time and place can become criminal. But an opinion, in and of itself, cannot be criminal. Ever. Just as the law should not attack thought, it should also be slow to proscribe speech or expression simply because it is capable of causing offence. If you want to be able to say things that others don’t like or find challenging, you need to be willing to hear things that you don’t like. To judge whether you agree with something or not, first of all you need to hear it. Free speech isn’t just the freedom to be nice. New ideas or arguments, or views that challenge received wisdom, may offend some people. But the price of living in a free society is that we may be confronted with views we find challenging.This is an essential aspect of democracy. It strengthens our constitution.People can be offensive and tasteless. What is important is that others are able to expose, challenge, and ridicule what they say through open debate. The most effective way of dispelling ignorance and prejudice is through free speech.
¹Engheim, Muckovitch, Kettelburg, Weinbaum, and Oski v. R or Free Speech – Why? is taken from Uncommon Law by A. P. Herbert, which while it may parody the law may be taken as valid in its assertions.
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