A Warning to Americans From Across the Pond: Don’t Take Your Free Speech Rights for Granted
February 1, 2023 | Tags: FEE
For the past decade, freedom of speech has been at the forefront of America's culture war, and it should not be controversial to say that both sides are at least partly to blame for this.
Many on the left have exploited their expanding cultural hegemony to suppress dissenting speech in universities, religious institutions, and the creative industries, while some on the right have attempted to suppress “obscenity,” punish the speech of their ideological enemies, and micromanage classroom instruction.
To those on all sides who think of America’s proud free speech tradition as a political football, I have a simple message: heed Britain’s example.
Last month, a woman was arrested in the UK for refusing to cooperate with a Police investigation into her activities near an abortion clinic. What stimulated this investigation? Was she blocking access to the clinic? Harassing women seeking an abortion? No, she was silently praying.
The arrest of Isabel Vaughan-Spruce is just the latest in a tapestry of alarming censorship exhibits. Since the passage of the Communications Act in 2003, it has become the norm to see reports of people being jailed for ‘offensive’ private text messages; during the mourning period for Queen Elizabeth, several peaceful anti-monarchy protesters were detained or arrested; and in a recent statement, the Crown Prosecution Service argued sections of The Bible “are simply no longer appropriate in modern society and … would be deemed offensive if stated in public.”
🚨 | La policía detiene en Reino Unido a Isabel-Vaughan-Spruce por rezar en silencio cerca de un centro abortista de Kings Norton, Birmingham, en cuatro ocasiones.— Emmanuel Rincón (@EmmaRincon) December 22, 2022
"¿Estás rezando?", pregunta el policía.
"Puede que esté rezando en mi cabeza", responde. pic.twitter.com/nVQ2AOScMp
The reaction of Britain’s governing elite has not been to correct this sorry state of affairs, but to double down on Parliamentary efforts to curb free expression. New legislation called The Public Order Bill, if passed, will have a chilling effect on our right to protest; the government’s proposed Online Safety Bill would fatally undermine encryption, while forcing tech companies to censor speech “on an industrial scale”; and some MPs have recently taken it upon themselves to sign a letter condemning an offensive op-ed about Meghan Markle.
Thankfully, the American Constitution is clear that decisions about the content of speech are not in the purview of legislators, but individuals. Although post-New Deal Supreme Court jurisprudence leaves much to be desired, it is to the judiciary’s credit that it has generally upheld First Amendment provisions stringently.
While a strong system of constitutional protections is a vital prerequisite to upholding individual freedom, it is not a silver bullet. The key threat to free speech in the UK comes from voters’ unwillingness to defend the right at the ballot box.
On free speech, most Brits are split into two groups. The first takes a Helen Lovejoy-esque approach to speech, with “Won’t somebody think of the children?” being an essential rallying cry for their campaign to encourage more online censorship. This group tends to endorse the view that causing offence or panic trumps the right to free expression, which in turn underpins their desire for other restrictions like anti-hate speech and anti-misinformation laws.
The second group’s approach is akin to appeasement, condemning the latest encroachment on free speech (particularly when it affects them or their in-group) and proclaiming censorship should not go one step further. They rarely, however, make the principled case for free speech or advocate the repeal of all speech-suppressing laws.
The first group is an active threat to free speech, while the second lacks the ideological commitment to fight back against the tide of censorship engulfing British law.
The task ahead for those of us trying to restore free speech is titanic: first, we have to engineer a colossal change in the culture around free speech, such that voters will no longer tolerate infringements on their freedom by MPs. If we can accomplish this, we must then repeal a gargantuan body of speech-suppressing legislation. Only then would it be possible to implement institutional protections akin to the First Amendment, which would shield freedom of expression from future Parliamentary interference.
Those willing to take on this task look to America as the shining city on the hill—a haven of free expression in a world becoming increasingly hostile to it. So much of the work we must do in the UK is already done in the US: you have a proud revolutionary heritage which promotes individual expression, characters who stand proudly as individuals against the mob are core to so much of your history and mythology, and your constitutional guarantee of free speech has largely withstood the challenges thrown its way.
This has not, however, always been true. During World War I, Americans were whipped into a patriotic fervor which saw dissent as a vice, not a virtue. As expected, Congress was not immune to that fervor, passing the Espionage Act of 1917, which restricted anti-war speech. Tragically, the Supreme Court also refused to stop liberties being undermined, upholding Congressional censorship in cases like Debs v. United States—which approved the imprisonment of socialist presidential candidate Eugene Debs for speaking against the war—and Schenck v. United States—which upheld the criminalization of speech urging people to ignore the draft and originated the misguided idea that falsely shouting ‘Fire!’ in a crowded theater is not legally protected speech.
As America’s past and Britain’s present show, you cannot always rely on precedent and institutions to protect free speech. In 1944, Judge Learned Hand delivered a speech titled “The Spirit of Liberty.” While I believe the vision of liberty he articulated in the speech was flawed, he delivered an important insight when he said:
“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”
The future of free speech lies in the heart of every American, in every university lecture theater, in every protest, in every vote, in every speech, and in every debate. Nurture it and selfishly guard it, because if politicians sense that your willingness to protect it has diminished, everything from your right to speak out against government policy to your right to silently pray outside an abortion clinic may, before you even realize it, be eroded.
Freedom of speech is functionally extinct in Britain. I urge all Americans to learn the lessons from our experience.