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
Published in March 2018 issue of Prospect Magazine
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.