If we want to retain our right to free speech, we should copy the US approach—though it would require a UK constitutionby Hugh Tomlinson / February 20, 2018 / Leave a comment
Four years ago, under the watchful glare of technicians from GCHQ, Guardian journalists destroyed computers used to store the top-secret documents leaked to them by Edward Snowden. The then-Guardian editor Alan Rusbridger had been required to set his staff to work on the hardware with angle-grinders and drills following government threats of an injunction. He explained his actions by reference to there being no right to free speech in English law. The bizarre episode led Wikipedia founder Jimmy Wales to call for the UK to adopt a US-style “First Amendment,” the free-speech clause in the American constitution, to protect whistleblowers.
I have a special, personal interest in such suggestions since, during the Leveson Inquiry into the culture and practices of the press, I was involved in drafting a sort of British equivalent to the First Amendment (see below).
Had it ever been implemented, it would have required public authorities to uphold freedom of the press. But the incident in the Guardian basement reminded everybody of the obvious truth: governments find the temptations of censorship difficult to resist. This raises the question of how, in legal terms, speech can be properly protected.
The argument is never—not even in the United States—absolutely unconditional. Many kinds of speech are banned or criminalised under our law, such as threats to kill, or blackmail demands. Others are less obvious and are often brought in to respond to some new, passing, moral panic. The dangers of this are obvious, which is one reason why there is interest in some kind of over-arching protection of free expression.
The call for a British First Amendment has attracted wide support. In his polemic You Can’t Read This Book, the journalist Nick Cohen gave some “Advice for Free Speaking Citizens”: “If you have the chance to enact one law… make it the First Amendment,” which he calls the “best guarantor of freedom yet written.”
There is no doubt that the US approach is a tempting one. The relevant part of the 1791 First Amendment to the US Constitution provides that “Congress shall make no law… abridging the freedom of speech or of the press.” Advocates of a British equivalent would like to see an Act of Parliament to enshrine the same approach in our law.
Unfortunately, this is not straightforward. The first problem is that the apparently unqualified words of the First Amendment cannot be taken literally. Everyone agrees that Congress can abridge freedom of speech and of the press in some circumstances. It can, for example, forbid witnesses to make false statements in court.
Again, in the well-known words of Oliver Wendell Holmes, “The most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre.” The US courts have developed a complex and difficult set of principles for deciding when and how speech can be restricted or prohibited.
Read Afua Hirsch on why free speech isn’t about freedom, but power
Nonetheless, free speech remains a “primary value” under the US Constitution—it is often a “trump card.” In the 1960s, the First Amendment was used to restrict the application of the law of defamation. In practice, public figures can only make defamation claims if they can show that person publishing the statement knew it was false. This is a difficult hurdle to overcome, and it has left some sensitive souls—foremost among them President Donald Trump—demanding that US libel law be made easier to use. Whether or not this is a good idea, it would now require a constitutional amendment.
Free speech does not, historically, have the same primacy under English law. Free speech is important but not decisive. The primacy of free speech is not compatible with the European Convention on Human Rights—a code written by British lawyers.
This requires that the various and frequently competing rights be balanced against one another. This approach is enshrined in UK law by the Human Rights Act. In some courts, there has been a tendency to privilege free speech over other rights, which led one judge at the European Court of Human Rights in Strasbourg to complain that, under US influence, some have made a “fetish of freedom of the press.” He called for the pendulum to swing back.
This call has been heeded. It is now well established that the Convention requires a “balancing” of rights in every case: on one side, free speech; on the other, reputation and privacy. At the outset, all these rights are taken to be of equal value. Everything depends on the particular facts—the type of speech involved, the nature of the damage to reputation or the kind of privacy. Political speech has a high value and is likely to prevail. Entertainment journalism has less value and so is more likely to lose out to privacy.
The European Convention forms part of English law. A US-style First Amendment, with the general presumption that free speech trumps other rights, is not compatible with human rights principles, and so would require us to leave the Convention. It would require the English law to set out in a very new direction.
But there is another, distinctly British, problem with a British First Amendment. The power of the US First Amendment derives from the fact that it is part of the US Constitution. Laws that are incompatible with the US Constitution can be struck down by the Courts. To take just one remarkable example, in 2005 Congress passed the Stolen Valor Act, criminalising false statements about military honours. But, seven years later, the Supreme Court struck this down as being inconsistent with the First Amendment. The Court was clear: false speech is protected.
None of this is possible in Britain. The constitutional protection of free speech requires a constitution. The so-called “unwritten constitution” of the UK is, in reality, no such thing. A proper “written” constitution sets limits on the powers of the institutions of government, “Congress shall make no law…” The loose and flexible set of rules that is described as Britain’s unwritten constitution sets no such limits. It can be changed—sometimes by new legislation, but often by mere government decision, or a change in practice.
The constitutional protection of free speech requires a constitution.
It is, of course, possible for a parliament to try and give special status to laws it passes. The Human Rights Act is a good example. But a subsequent parliament can always take a different view: throughout much of its 20-year life, there have been regular calls from the political right to repeal the Act, and these have sometimes been taken up as Conservative Party policy. The survival of the Act thus far has been entirely contingent: the combination of party policy and parliamentary arithmetic has never been quite right to repeal it, although Theresa May continues to flirt with the idea.
A First Amendment in the UK could, likewise, be encroached on or overruled by a subsequent Act of Parliament. This overruling does not even have to be explicit. A law banning offensive tweeting would take precedence over an earlier law prioritising free speech.
So is there any way to entrench free speech and enact a British First Amendment? There is, but it would require a UK Constitution. This would set out the powers of the institutions of the State and make clear their limits. Laws that were inconsistent with this Constitution would, as in the US, be struck down. This kind of system—which is in place almost everywhere else in the world—is not completely foreign to our own legal system. The Scotland Act 1998 operates as the constitution of that country. The powers of the Scottish Parliament and government are limited by this Act. Scottish legislation that is incompatible with it can be struck down by the courts.
A UK Constitution could, and should, include a “Chapter” protecting fundamental rights, which would include the right to freedom of speech. But such a right should, as in the human rights convention, remain a qualified one. It would have to be balanced against other rights—such as privacy and reputation.
Having worked on both sides of the issue, arguing for the protection of a person’s right to air controversial opinions, but having also represented the victims of phone hacking, a criminal invasion of private life aimed at no higher purpose than selling newspapers, I am convinced that such balancing is a requirement of justice, and provides continuity with English legal traditions.
But even with all the constraints outlined above, a free-speech provision would be of benefit in the fight to protect the right to expression. Most importantly, it would mean that when government or parliament brought in a measure restricting what can be said, that restriction would have to be properly justified. It would have to be for a proper purpose and necessary and proportionate to that purpose.
A balanced First Amendment in a UK Constitution would not provide universal protection for free speech. This is not possible. There is no easy way out of the difficult job of balancing rights on a case by case basis. The real value of such a provision would be to require government, parliament and the Courts to defend and justify the imposition of any restrictions on free speech. Fundamental rights should not be casually disregarded.
The British First Amendment
One of the recommendations of the Leveson Inquiry into the British press was that an explicit duty should be placed on the government to protect the freedom of the press.
Hugh Tomlinson QC was involved in drafting such a measure, which some would call “a British First Amendment.” The first three clauses of this are reproduced below.
But the government didn’t like the idea and, because it was part of a package which included independent regulation, neither did the press. As a result, the proposal was never implemented.
1. Protection of media freedom
(1) Public authorities must aim to:
(a) protect the freedom of the media, and (b) support the independence of the media.
(2) In particular, in exercising their functions public authorities must:
(a) have regard to the importance of the freedom and independence of the media, and
(b) recognise the right of the media to receive and impart information without interference by public authorities.
(3) It is unlawful for a public authority to interfere or attempt to interfere with the media unless the interference or attempt is undertaken:
(a) for a legitimate purpose which the public authority considers necessary in a democratic society, and (b) having full regard to the importance of the freedom and independence of the media.