speech isn’t ‘free’! « a serious look at life

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A Serious Look At LifeIt seems to me that the nature of the ultimate revolution with which we are now faced is precisely this: That we are inIt seems to me that the nature of the ultimate revolution with which we are now faced is precisely this: That we are in

process of developing a whole series of techniques which will enable the controlling oligarchy who have always existedprocess of developing a whole series of techniques which will enable the controlling oligarchy who have always existed

and presumably will always exist to get people to love their servitude. (Aldous Huxley)and presumably will always exist to get people to love their servitude. (Aldous Huxley)

Speech isnt free!

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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 speechFree Expression and the Rule of

Law, 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 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 legalrather 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 in the freedom of speech put more succinctly than by the Lord Chancellor in his

1927 ruling on the case of Engheim, Muckovitch, Kettelburg, Weinbaum, and Oski v. R . 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.

he 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

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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; Deedsnot words; Least

saidsoonest 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 vaguebelief 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.

he DPP 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 dont like or find challenging, you need to be willing

to hear things that you dont like. To judge whether you agree with something or not, first of all you need to hear it.

Free speech isnt 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.

Humour, Humour, Internet, Law, Literature, Media, UK A.P. Herbert, Albert Haddock, constitution, MyT, UK


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