In contrast to the United States, Britain has no constitutionally entrenched protections on freedom of speech. The lack of any such guarantees has been more or less of a problem depending on the era in question. Free speech has tended to thrive perfectly well in the absence of legal reinforcement. As a customary right enjoyed by all Englishmen, in good times it has fallen among the indefinite array of things that are permitted precisely because they are not expressly forbidden.
We do not live in good times.
Today, we have citizens in prison for campaigning—not with violence, but with stickers—against replacement migration, for posting unpleasant rage rhetoric on Facebook, even for peacefully chanting “Who the f*** is Allah?” on political demonstrations. While admittedly not the most sophisticated contribution to the debate, why should it be that only theologians can take an interest in divine ontology? Alas, in our hyper-diverse society, the hurt feelings of newly imported tribal interest groups—or ‘communities,’ as we are supposed to call them—naturally take precedence over the right of native Britons to ask provocative questions.
In this way, the balkanisation wrought by the mass importation of foreigners into the United Kingdom has landed a fearsome blow to our free speech traditions. Such liberties, once taken for granted, are now said to threaten the very ‘community relations’ that are otherwise trumpeted as our greatest strength. Would stronger free speech laws, modelled on the U.S. First Amendment, have saved us? And might they still do so?
The main difficulty is that the British constitution is not, like its American counterpart, based on fundamental law. For the most part, what rights we do enjoy are not the result of a single document with privileged status over all other kinds of legal writ. They have been passed by a sovereign parliament that can just as easily repeal them.
It was partly for this reason that the American colonists, though they wildly overstated their grievances, developed such a suspicious attitude to the very notion of parliaments in the 1760s and ’70s. Our English common law rights, rooted in the evolution of judge-discovered law and customary precedents emerging from particular cases, are something of an exception to the general rule of parliamentary sovereignty, for they do not flow from any legislature. However, these can still be overturned—and in many cases already have been—by majorities in parliament. There is nothing other than arithmetic to prevent statutes dreamt up on a fanatical, spasmodic whim from bulldozing centuries of gradually worked out legal principle.
This power is nothing new, but it is no longer exercised with the appropriate humility by those in Westminster. It is no accident that whereas in 1911 Britain had one lawyer for every 3,000 people, we now have one for every 400. Over the last century, civil law has expanded at an industrial scale and a machine-like pace, intruding into every detail of national life and supplanting the bottom-up traditions of English society as reflected in the common law.
Freedom of thought and speech have suffered greatly as a consequence. Vaguely worded statutes have become weapons in the hands of an overbearing modern state with definite prejudices.
When it comes to anti-free speech laws, the situation is most dire in Scotland. Holyrood’s Hate Crime and Public Order Act came into force, appropriately enough, on April Fool’s Day earlier this year, expanding the list of protected characteristics that can be invoked as having been violated under the already existent ‘stirring up hatred’ offence. In full-blown Soviet style, the privacy of the home is no longer respected. The household no longer counts as an exceptional dwelling, the new law having empowered children—or anyone else—to rat on their own parents for committing thought crimes behind closed doors.
While this escalation is yet to migrate southwards to England, the Public Order Act of 1986 was amended by Tony Blair’s government to include religion in 2006 and sexual orientation in 2008, again as insidious additions to the ‘stirring up hatred’ laws. Many of those being imprisoned as part of Keir Starmer’s crackdown, particularly the alarming number of people who did not even engage in acts of violence, are falling victim to conviction and harsh sentencing for these newly invented types of crime.
Gone are the days when, as the historian A.J.P. Taylor once put it, “apart from exchanging pleasantries with the postman in the morning, the … Englishman never encountered the state.” The police are now called upon to enforce the new state religion of diversity, equity, and inclusion (DEI). Free speech has been gradually eroded by statutes designed to consolidate this revolutionary project and ensure obedience to its every dogma.
Toby Young, the founder and director of the Free Speech Union, has made a powerful case that the 1965 Race Relations Bill is “where the rot began.” “Clause 6 of that Act,” he explains, “substituted the offence of ‘stirring up disorder’—the Common Law principle that you can more or less say what you like unless it leads to a breach of the peace—with the offence of intentionally stirring up racial hatred.”
It might be argued, then, that we do not need our own First Amendment. In the form of the common law breach of the peace principle, which still exists in a dormant condition, we already have one to which we can return once any and all intervening outrages are summarily repealed. Again, though, the common law is not a self-protecting inheritance. Having been abrogated by a variety of pernicious statutes, it could be so once more, even if we defaulted back to every one of its sound precedents clarifying the boundary between free speech and unlawful action. Consequently, it cannot be taken for granted. While this may distress Scrutonian lovers of the common law, it is an undeniable fact that culture wars, insofar as they shape the legal situation, are bound to rage on a statutory battlefield.
Unless we overhaul our parliamentary constitution, there is no hope of perfectly imitating what the Americans have secured for themselves. Even the UK legal instruments which do perform some degree of entrenchment—as the European Communities Act (1972) did until we left the EU in 2020 and as the European Convention on Human Rights still does via the Human Rights Act (1998)—can nevertheless be ditched by a motivated parliament. The process is nowhere near as arduous or exacting as, say, a push to repeal any of America’s constitutional amendments, let alone the original ten that make up the Bill of Rights, is designed to be.
By far the wiser move would be to incorporate all of America’s existing case law to have emerged from the First Amendment into our domestic legal code and then dare our adversaries to repeal it. The problem with relying on common law is that it does not need to be repealed at all; it is enough simply to uproot these antique charms with aggressive statutes. More sinister still, few onlookers are in a position to object. The Left’s conscious attack on the common law has been unnoticeable to anyone who is not a member of the nation’s vanishing community of tweedy, Blackstone-soaked boffins. Such people rank low on the list of popular interest groups.
Many might say that the First Amendment itself, or some similar set of words, is all we need. Why not just transpose that into UK law? The problem with this is that, considered as an abstract formulation of words, as a stand-alone barebones clause, even a verbatim statute to this effect would be open to interpretation by a justice system increasingly captured by the view that too permissive an approach to free speech endangers supposedly vulnerable minorities. The entire body of U.S. case law growing out of the First Amendment would be both specific and comprehensive enough to get around this obstacle. The words on their own would be suggestive at best. A living body of organic, highly detailed, precedent-based case law, on the other hand, would leave the officials duty-bound to apply it on a day-to-day basis with far less licence to draw inspiration from ideologies hostile to free speech.
It hardly needs to be said that such a proposal would never fly in a country like France. Not even the most skilful marketing whizz could hope to succeed in convincing the French that they ought to borrow from anyone, still less the Americans, for the sake of liberté.
In the British case, there is no reason why my proposal should grate against our instinctive feelings of national pride. If anything, it is best understood as an expression of patriotic self-worth—less an emergency foreign transplant than an emphatic restoration of what we have lost. What is the First Amendment if not a testament to the best of England? After all, as Young points out, the existing American case law around free speech is to all intents and purposes indistinguishable from the old English breach of the peace principle.
The only difference is a subtle linguistic one, the Americans having substituted the straight-shooting “imminent lawless action” for the quainter “breach of the peace” locution of the mother country. They otherwise carry the same meaning. In the form of Brandenburg versus Ohio (1969), the most relevant Supreme Court case to date, the U.S. has simply entrenched as constitutional precedent what English common law entrusted to the sublime, if for the moment somewhat demoralised, instincts of an ancient people. If we wish to restore and strengthen what we have been foolish enough to let perish on our watch, the exact language of Brandenburg, among other landmark cases, should be directly incorporated into British law:
The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce that action.
In practical terms, it must be said, this historic ruling redounded to the benefit of a thoroughly unpleasant Klu Klux Klansman named Clarence Brandenburg. But tough cases, not easy ones, are the tests of those principles that keep a society free.
Crucially, my suggestion would not be a surrender to Americanisation so much as a reinstatement of an English tradition that our transatlantic cousins, through a mixture of historical good fortune and the unquestionable wisdom of their founders, have done a more commendable job at honouring and upholding. We would be imitating no one more than our own forefathers. For the avoidance of midwittery, a title like the ‘Restoration of Our Ancient Freedoms Act’ would go some way to dodging half-educated complaints about some Yankee plot to remake Britain in its own image.
The sublimely named American judge Learned Hand understood that ‘the spirit of the law’ is not just a slogan. Active allegiance to a given form of life really does animate and ensure the flourishing of whatever makes its way onto the shelves by way of parchment. Hand wrote as much in his splendid 1942 essay, “The Contribution of an Independent Judiciary to Civilization”:
This much I think I do know—a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.
Ultimately, the power of human law cannot be expected to do all of the work required to maintain a free society if that society itself decides to throw out long-standing liberties for the vulgar fashions of the hour.
Does Britain Need a First Amendment?
In contrast to the United States, Britain has no constitutionally entrenched protections on freedom of speech. The lack of any such guarantees has been more or less of a problem depending on the era in question. Free speech has tended to thrive perfectly well in the absence of legal reinforcement. As a customary right enjoyed by all Englishmen, in good times it has fallen among the indefinite array of things that are permitted precisely because they are not expressly forbidden.
We do not live in good times.
Today, we have citizens in prison for campaigning—not with violence, but with stickers—against replacement migration, for posting unpleasant rage rhetoric on Facebook, even for peacefully chanting “Who the f*** is Allah?” on political demonstrations. While admittedly not the most sophisticated contribution to the debate, why should it be that only theologians can take an interest in divine ontology? Alas, in our hyper-diverse society, the hurt feelings of newly imported tribal interest groups—or ‘communities,’ as we are supposed to call them—naturally take precedence over the right of native Britons to ask provocative questions.
In this way, the balkanisation wrought by the mass importation of foreigners into the United Kingdom has landed a fearsome blow to our free speech traditions. Such liberties, once taken for granted, are now said to threaten the very ‘community relations’ that are otherwise trumpeted as our greatest strength. Would stronger free speech laws, modelled on the U.S. First Amendment, have saved us? And might they still do so?
The main difficulty is that the British constitution is not, like its American counterpart, based on fundamental law. For the most part, what rights we do enjoy are not the result of a single document with privileged status over all other kinds of legal writ. They have been passed by a sovereign parliament that can just as easily repeal them.
It was partly for this reason that the American colonists, though they wildly overstated their grievances, developed such a suspicious attitude to the very notion of parliaments in the 1760s and ’70s. Our English common law rights, rooted in the evolution of judge-discovered law and customary precedents emerging from particular cases, are something of an exception to the general rule of parliamentary sovereignty, for they do not flow from any legislature. However, these can still be overturned—and in many cases already have been—by majorities in parliament. There is nothing other than arithmetic to prevent statutes dreamt up on a fanatical, spasmodic whim from bulldozing centuries of gradually worked out legal principle.
This power is nothing new, but it is no longer exercised with the appropriate humility by those in Westminster. It is no accident that whereas in 1911 Britain had one lawyer for every 3,000 people, we now have one for every 400. Over the last century, civil law has expanded at an industrial scale and a machine-like pace, intruding into every detail of national life and supplanting the bottom-up traditions of English society as reflected in the common law.
Freedom of thought and speech have suffered greatly as a consequence. Vaguely worded statutes have become weapons in the hands of an overbearing modern state with definite prejudices.
When it comes to anti-free speech laws, the situation is most dire in Scotland. Holyrood’s Hate Crime and Public Order Act came into force, appropriately enough, on April Fool’s Day earlier this year, expanding the list of protected characteristics that can be invoked as having been violated under the already existent ‘stirring up hatred’ offence. In full-blown Soviet style, the privacy of the home is no longer respected. The household no longer counts as an exceptional dwelling, the new law having empowered children—or anyone else—to rat on their own parents for committing thought crimes behind closed doors.
While this escalation is yet to migrate southwards to England, the Public Order Act of 1986 was amended by Tony Blair’s government to include religion in 2006 and sexual orientation in 2008, again as insidious additions to the ‘stirring up hatred’ laws. Many of those being imprisoned as part of Keir Starmer’s crackdown, particularly the alarming number of people who did not even engage in acts of violence, are falling victim to conviction and harsh sentencing for these newly invented types of crime.
Gone are the days when, as the historian A.J.P. Taylor once put it, “apart from exchanging pleasantries with the postman in the morning, the … Englishman never encountered the state.” The police are now called upon to enforce the new state religion of diversity, equity, and inclusion (DEI). Free speech has been gradually eroded by statutes designed to consolidate this revolutionary project and ensure obedience to its every dogma.
Toby Young, the founder and director of the Free Speech Union, has made a powerful case that the 1965 Race Relations Bill is “where the rot began.” “Clause 6 of that Act,” he explains, “substituted the offence of ‘stirring up disorder’—the Common Law principle that you can more or less say what you like unless it leads to a breach of the peace—with the offence of intentionally stirring up racial hatred.”
It might be argued, then, that we do not need our own First Amendment. In the form of the common law breach of the peace principle, which still exists in a dormant condition, we already have one to which we can return once any and all intervening outrages are summarily repealed. Again, though, the common law is not a self-protecting inheritance. Having been abrogated by a variety of pernicious statutes, it could be so once more, even if we defaulted back to every one of its sound precedents clarifying the boundary between free speech and unlawful action. Consequently, it cannot be taken for granted. While this may distress Scrutonian lovers of the common law, it is an undeniable fact that culture wars, insofar as they shape the legal situation, are bound to rage on a statutory battlefield.
Unless we overhaul our parliamentary constitution, there is no hope of perfectly imitating what the Americans have secured for themselves. Even the UK legal instruments which do perform some degree of entrenchment—as the European Communities Act (1972) did until we left the EU in 2020 and as the European Convention on Human Rights still does via the Human Rights Act (1998)—can nevertheless be ditched by a motivated parliament. The process is nowhere near as arduous or exacting as, say, a push to repeal any of America’s constitutional amendments, let alone the original ten that make up the Bill of Rights, is designed to be.
By far the wiser move would be to incorporate all of America’s existing case law to have emerged from the First Amendment into our domestic legal code and then dare our adversaries to repeal it. The problem with relying on common law is that it does not need to be repealed at all; it is enough simply to uproot these antique charms with aggressive statutes. More sinister still, few onlookers are in a position to object. The Left’s conscious attack on the common law has been unnoticeable to anyone who is not a member of the nation’s vanishing community of tweedy, Blackstone-soaked boffins. Such people rank low on the list of popular interest groups.
Many might say that the First Amendment itself, or some similar set of words, is all we need. Why not just transpose that into UK law? The problem with this is that, considered as an abstract formulation of words, as a stand-alone barebones clause, even a verbatim statute to this effect would be open to interpretation by a justice system increasingly captured by the view that too permissive an approach to free speech endangers supposedly vulnerable minorities. The entire body of U.S. case law growing out of the First Amendment would be both specific and comprehensive enough to get around this obstacle. The words on their own would be suggestive at best. A living body of organic, highly detailed, precedent-based case law, on the other hand, would leave the officials duty-bound to apply it on a day-to-day basis with far less licence to draw inspiration from ideologies hostile to free speech.
It hardly needs to be said that such a proposal would never fly in a country like France. Not even the most skilful marketing whizz could hope to succeed in convincing the French that they ought to borrow from anyone, still less the Americans, for the sake of liberté.
In the British case, there is no reason why my proposal should grate against our instinctive feelings of national pride. If anything, it is best understood as an expression of patriotic self-worth—less an emergency foreign transplant than an emphatic restoration of what we have lost. What is the First Amendment if not a testament to the best of England? After all, as Young points out, the existing American case law around free speech is to all intents and purposes indistinguishable from the old English breach of the peace principle.
The only difference is a subtle linguistic one, the Americans having substituted the straight-shooting “imminent lawless action” for the quainter “breach of the peace” locution of the mother country. They otherwise carry the same meaning. In the form of Brandenburg versus Ohio (1969), the most relevant Supreme Court case to date, the U.S. has simply entrenched as constitutional precedent what English common law entrusted to the sublime, if for the moment somewhat demoralised, instincts of an ancient people. If we wish to restore and strengthen what we have been foolish enough to let perish on our watch, the exact language of Brandenburg, among other landmark cases, should be directly incorporated into British law:
In practical terms, it must be said, this historic ruling redounded to the benefit of a thoroughly unpleasant Klu Klux Klansman named Clarence Brandenburg. But tough cases, not easy ones, are the tests of those principles that keep a society free.
Crucially, my suggestion would not be a surrender to Americanisation so much as a reinstatement of an English tradition that our transatlantic cousins, through a mixture of historical good fortune and the unquestionable wisdom of their founders, have done a more commendable job at honouring and upholding. We would be imitating no one more than our own forefathers. For the avoidance of midwittery, a title like the ‘Restoration of Our Ancient Freedoms Act’ would go some way to dodging half-educated complaints about some Yankee plot to remake Britain in its own image.
The sublimely named American judge Learned Hand understood that ‘the spirit of the law’ is not just a slogan. Active allegiance to a given form of life really does animate and ensure the flourishing of whatever makes its way onto the shelves by way of parchment. Hand wrote as much in his splendid 1942 essay, “The Contribution of an Independent Judiciary to Civilization”:
Ultimately, the power of human law cannot be expected to do all of the work required to maintain a free society if that society itself decides to throw out long-standing liberties for the vulgar fashions of the hour.
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