Rights! What ‘Rights’?
The post ‘Speech isn’t free’ elicited the comment “Isn’t the assumption that one has the ‘right’ to do something unless it is proscribed by law. The discussion of whether free speech is ‘a right that existed in law’ is moot on the premise that it exists as a right unless it is made illegal”. A view I have to agree with – up to a point. Historically, the right to free speech has always been proscribed by law in the form intended to suppress ‘sedition, or ‘treason’ or ‘slander’ (criminal and civil law). My posts on subject areas like this are generally a means of introducing the humorous creations of A.P. Herbert and his “Misleading Cases’, which parody ‘The Law’.
Now, I have had occasion to refer before to the curious delusion that the British subject has a number of rights and liberties which entitle him to behave as he likes so long as he does no specific injury or harm. There are few, if any, such rights, and in a public street there are none; for there is no conduct in a public thoroughfare which cannot easily be brought into some unlawful category, however vague.
If the subject remains motionless he is loitering or causing an obstruction; if he moves rapidly he is doing something which is likely to cause a crowd or a breach of the peace; if his glance is affectionate he is annoying, if it is hard he may be threatening, and in both cases he is insulting; if he keeps himself to himself he is a suspicious character, and if he goes about with two others or more he may be part of (a) a conspiracy or (b) an obstruction or (c)an unlawful assembly; if he begs without singing he is a vagrant, and if he sings without begging he is a nuisance.
But nothing is more obnoxious to the law of the street than a crowd, for whatever purpose collected, which is shown by the fact that a crowd in law consists of three persons or more; and if those three persons or more have an unlawful purpose, such as the discussion of untrue and defamatory gossip, they are an unlawful assembly; while if their proceedings are calculated to arouse fears or jealousies among the subjects of the realm they are a riot.
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.
Engheim, Muckovitch, Kettelburg, Weinbaum, and Oski v. R (Free Speech – Why?) by A. P. Herbert.
The view could be taken that adopting the the rulings of the European Court of Human Rights (ECHR) regarding the ‘freedom of expression‘ through the Human Rights Act 1998 ensures such freedom ‘in law’. I would claim that, while the ECHR has enshrined certain ‘freedoms of expression in law’, it has not curtailed the power of any authority to interpret expressions of those ‘freedoms’. Perhaps the most significant thing that it has done, is to provide a court for the redress of any unlawful infringements of such ‘freedoms’ by any authority.
While I may regard A.P. Herbert’s protagonist Albert Haddock as a hero in his constant battles with the law in defence of the rights of man the judgements made against his appeals may be more significant than those made for him.
“The appellant made the general answer that this was a free country and a man can do what he likes if he does nobody any harm. And with that observation the appellant’s case takes on at once an entirely new aspect. If I may use an expression which I have used many times before in this Court, ‘it is like the thirteenth stroke of a crazy clock, which not only is itself discredited but casts a shade of doubt over all previous assertions’. For it would be idle to deny that a man capable of that remark would be capable of the grossest forms of licence and disorder.
It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. The citizens of London must realize that there is almost nothing they are allowed to do. Prima facie all actions are illegal, if not by Act of Parliament, by Order in Council; and if not by Order in Council, by Departmental or Police Regulations, or By-laws.
They may not eat where they like, drink where they like, walk where they like, drive where they like, sing where they like, or sleep where they like. And least of all may they do unusual actions ‘for fun’. People must not do things for fun. We are not here for fun. There is no reference to fun in any Act of Parliament.
If anything is said in this Court to encourage a belief that Englishmen are entitled to jump off bridges for their own amusement the next thing to go will be the Constitution. For these reasons, therefore, I have come to the conclusion that this appeal must fail. It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence, for which he has been most properly punished”.
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