On Feb. 17, Joseph Kelly entered a “not guilty” plea before a Scottish court on the charge of having posted “an offensive tweet” in response to the death of popular centenarian fundraiser Captain Tom Moore. Most of the press, including the BBC and six major Scottish newspapers, did not even reprint Kelly’s words, as if merely repeating them might breach a taboo. The tweet read, “The only good brit soldier is a deed one, burn auld fella, buuuuurn.”
So, how could a tweet addressed to a dead man fall foul of Scottish law?
It is surprising, and more than a little shameful, that the United Kingdom is now such a censorious country, given its history. The 1689 English Bill of Rights marked the official end of the divine right of monarchs and granted citizens the ability to speak up for themselves: “to petition the king,” without fear of arrest or prosecution. It also guaranteed complete freedom of speech within Parliament, which is now known in the U.K. as “parliamentary privilege.” The U.S. Bill of Rights, in many ways the core of the Constitution, was directly inspired by this document.
In the late 17th and 18th centuries, England was at the forefront of the Enlightenment, which, at its heart, was about questioning authority and thinking for oneself. Major luminaries included John Locke, who argued that we acquire knowledge by observing and exploring, and David Hume, who questioned scriptural miracles. The Enlightenment thinkers valued the exercise of individual intellect over ideas imposed by fiat.
The lapse of the Licensing Act in 1695 ended pre-publication censorship of the British press. As a result, newspapers proliferated, and a vibrant public sphere developed, centered on the coffeehouses of London and, later, Edinburgh, where people read the papers and argued about science, politics, and religion. Literacy skyrocketed. The arts, science, and trade all flourished thanks to the new freedom to exchange ideas. It is from this intellectual milieu that America’s founding fathers, Jefferson, Hamilton, Madison, and others, emerged. And it was in America that this cultural and legal structure of expression, inherited from the U.K., found its zenith.
Free speech in Europe is no longer primarily under threat from autocratic kings or tyrants. Instead, in countries that once championed the idea of “sapere aude” (“dare to know”), freedom of expression is restricted by pusillanimous, ill-conceived, and vaguely worded hate speech laws. American readers should take note, for bad ideas can be imported from overseas just like good ones. The dangerously misguided idea that “hate speech is not free speech” is spreading in the United States, too, and in direct contrast to the principles behind your country’s founding.
In the U.S., the First Amendment protects freedom of expression from governmental interference, except in a very few, narrowly defined instances. In particular, the First Amendment explicitly protects offensive speech of the kind exemplified by Kelly’s tweet. As Justice Samuel Alito commented in 2017, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
The U.K., by contrast, has a jumble of overlapping, opaque laws that make it all too easy for the government to shut down speech. Even the U.K. branch of Amnesty International has stated that “governments have an obligation to prohibit hate speech.” The problem is that people disagree as to what “hate speech” means. And since the U.K. has no written constitution, there are no clear general guidelines regarding freedom of speech. Instead, in Britain, we rely on statutory law (laws passed by Parliament) and common or case law (legal precedent). These laws can be revised or overturned by Parliament and the courts at any time.
The nearest we have to a constitutional statement on free speech is Article 10 of the European Human Rights Act 1988, to which the U.K. is expected to remain a signatory post-Brexit. It grants citizens the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority.” This statement, however, is immediately qualified by the assertion that these liberties are “subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society” — including, most tellingly, laws for “the protection of health or morals.” These vague provisos allow individual countries plenty of leeway to outlaw speech they dislike.
The most significant piece of relevant U.K. legislation is Section 127 of the Communications Act 2003. This legislation originated with the 1935 Post Office (Amendment) Act, which penalized people for wasting public resources by sending hate mail and making nuisance phone calls. A person is guilty under the 2003 act if he or she “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” or knowingly sends a false message “for the purpose of causing annoyance, inconvenience or needless anxiety to another.” Since 2010, the act has often been used to prosecute people for their social media posts on the grounds that the internet is a public service and offensive tweets and Facebook statuses are therefore a misuse of British taxpayer money, even though the U.K.’s Wi-Fi providers, as well as Twitter and Facebook, are private corporations.
That the act lends itself to overreach has been noted by many. Director of Public Prosecutions Keir Starmer QC (now the leader of the British Labour Party) has advised courts not to prosecute posts that are merely “offensive, shocking or disturbing” but only those that are “so toxic as to be grossly offensive, indecent, obscene or false.” The difference between merely “offensive” and “grossly offensive” remains unclear.
There were 567 prosecutions under the Communications Act in Scotland in 2018, the most recent year for which figures are available (these numbers include one-on-one calls and texts). The most recent detailed breakdown of such convictions covers 2003–2011, during which time there were 5,316 prosecutions in England and Wales.
Reading through U.K. free speech case law will quickly disabuse you of the notion that free speech is a partisan issue. This isn’t the result of conservative or woke authoritarianism. It’s about enforced respectability, and it reads like a history of the moral status quo. A dispiriting proportion of the cases involves edgy jokes, such as that of frustrated frequent flyer Paul Chambers, who tweeted in 2010, “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your s— together otherwise I am blowing the airport sky high!!”
In 2012, 19-year-old Matthew Woods was sentenced to 12 weeks imprisonment for posting jokes about missing children April Jones and Madeleine McCann on Facebook. The magistrates’ court refused to say exactly what he wrote, though it did reveal that the posts included the terribly risqué, “Who in their right mind would abduct a ginger kid?” Presiding Chief Magistrate Bill Hudson justified the custodial sentence on the grounds that the jokes caused “public outrage.” This sounds a lot like trial by mob. In the same year, Jordan Barrack was sentenced to 40 hours community service and a £400 fine for the risible offense of posting a photo of a policeman with penises stenciled over it on Snapchat.
In 2017, Mark Meechan (who goes by the online persona “Count Dankula”) was famously fined £800 for a “disgraceful and utterly offensive” YouTube video in which his girlfriend’s pug, Buddha, raises a paw in response to the phrase “Sieg heil.” Meechan was refused permission to appeal on the grounds that the video had caused “considerable distress,” though it is unclear to whom since no viewers came forward to press charges. Depressingly, judge and prosecution agreed that “context and intent are irrelevant” to judging whether a YouTube video is criminal or simply comedic.
Such refusal to consider even context in matters involving speech was also in evidence in 2017, when 19-year-old Chelsea Russell received a fine and an eight-week community order for posting the lyrics to Snap Dogg’s “I’m Trippin’” on Instagram because they contain a “grossly offensive” term (the N-word) — although, as Russell’s defense pointed out, “Jay-Z used these words in front of thousands of people.”
U.K. media outlets are sometimes reluctant to cite potentially offensive words. For example, last year, the BBC was forced to apologize for news coverage using the N-word in a report about a racially aggravated attack in Bristol. The word was used in quoting the attacker, but the company nonetheless apologized after receiving nearly 19,000 complaints from the public. Should this reluctance extend to other slurs, it could create a dystopian paradox: U.K. citizens can be arrested for using certain epithets, but if the media are unwilling to print words that are considered outside the boundaries of acceptable speech, the public may not even know precisely what those boundaries are.
Even more potentially chilling than these legal restrictions are the accompanying discretionary police powers. The Orwellian-sounding category of “noncrime hate incidents” includes, according to policing guidelines, “any … incident which is perceived … to be motivated by a hostility or prejudice” based on race, sexuality, disability, or transgender status; 25,000 such incidents are investigated by the police each year. This category includes social media postings, as Harry Miller discovered when police came to his workplace in 2020 to ask him to remove tweets that mocked transgender women, citing, in particular, a limerick with the line, “Your breasts are made of silicone, your vagina goes nowhere.”
Even more ludicrously, in 2016, Steve McGawley was arrested for putting up Christmas lights in the shape of a bell, followed by the word “end” (“bell end” is British slang for the glans penis). Hilariously, the article reporting on this has partially blurred out the accompanying image. Laws against rudeness clearly encourage both arbitrary arrests and personal vendettas, since it is impossible to apply them fairly across the board. If we arrested everyone who either writes “bell end” or behaves like one, half the U.K. would surely be in police custody.
Legal protections of free speech provide a useful bedrock principle. But they only safeguard against governmental censorship. We in the U.K., along with many other nations across the globe, urgently need an American-style First Amendment. But those must also be buoyed and supplemented by a free speech culture.
When employees are fired for their private speech, there should be public outcry. Corporations will stop doing this if they fear public displeasure will affect their profits. Right now, however, online activists on both the Left and Right are gleefully calling for people to be fired for their tweets. This is extremely shortsighted. It allows companies to rid themselves easily of outspoken employees, silence critics, and protect “brands” from scrutiny at the expense of real people.
The future of U.K. free speech does not look encouraging. The Scottish government’s impending Hate Crime and Public Order Bill will introduce new legislation against speech that “stirs up hatred” against members of certain groups, including through “threatening, abusive or insulting” words. In 2013, Clause 5 of the 1986 Public Order Act, prohibiting “insulting words,” which was once used to arrest a man for asking a police officer if his horse was gay, was removed after a high-profile public campaign. Its reintroduction is a step backward.
There have also been calls to expand the number of protected characteristics covered by hate speech legislation to include “homeless people, sex workers, people who hold non-religious philosophical beliefs … and alternative subcultures (for example goths or punks).” These categories could easily multiply exponentially, with chilling effects on public discourse.
In addition, the U.K. government’s proposed Online Harms Bill would impose steep fines on social media companies that fail to punish “legal but harmful” speech, arguing that they have a “duty of care” toward their users. Consider that this is language more often used in the context of child protection. The bill argues that social media providers should stop adults from accessing “legal but harmful” material, despite the fact that we do not stop adults from accessing “legal but harmful” substances such as cigarettes, which often cause more damage than offensive tweets. The white paper notes that “nearly half of girls admit to holding back their opinion on social media for fear of being criticized.” The solution ironically proposed is to stop certain opinions from being voiced at all.
Americans should not assume that the U.S. is invulnerable to state attacks on free speech. Where Donald Trump talked of “fake news,” the newly empowered Senate Democrats use the synonym “misinformation.” Meet the new boss: same as the old boss. Alexandria Ocasio-Cortez recently revealed her involvement in a Senate commission that she hopes will lead to a ruling enabling the government to “rein in our media environment so that you can’t just spew disinformation and misinformation,” since “it’s one thing to have differing opinions, but it’s another thing entirely to just say things that are false.” But it is precisely the question of what is true and what is false on which Americans most strongly differ. Stanford Law School’s Center for Internet and Society and the Brookings Institution describe the Biden administration as bound by a “systemic duty of care” to regulate internet content: a paternalistic notion explicitly based on the U.K. approach.
The Democratic establishment has long upheld the rights of Facebook and Twitter to censor content, including journalism, and to ban users at will, with the justification that disgruntled users can simply use alternative platforms. Yet when large numbers began to move to competitor Parler, Amazon, Google, and Apple quickly removed access to their hosting services and app stores, causing the social media provider to shut down for over a month. There can be no meaningful freedom of speech if people with viewpoints the establishment considers unsavory have no means of making themselves heard.
The classic defense of freedom of speech relies on the metaphor of a marketplace of ideas, in which truth wins out over falsehood over the long term. But not all speech expresses abstract concepts or makes complex arguments. When Kelly posted “burn auld fella, buuuuurn,” he was not contributing to a truth-seeking, Lockean exploration of ideas. But such posts do reveal a different, equally important kind of truth: the truth about how people feel. As First Amendment lawyer Greg Lukianoff of the Foundation for Individual Rights in Education puts it, censorship prevents us from “seeing the world as it is.” It is a set of self-imposed blinkers.
Speech-policing encourages a superficial focus on word choice, as we saw when Disney recently fired actress Gina Carano for her “abhorrent” social media posts. While the world debated whether an Instagram meme was anti-Semitic, Disney quietly continued to support the Chinese government, which holds millions of its citizens prisoner in truly abhorrent concentration camps.
Draconian penalties for unwanted speech encourage people to lie. This prevents us from accurately gauging public opinion. It also prevents us from knowing how many and which people harbor extremist ideas, the first step in deradicalization. It drives such people away from public forums into siloed communities and private discussion groups, out of the reach of persuasion.
We cannot change what people think and feel by imposing speech codes. All we can do is enforce insincere lip service. This disables open discussion: the only nonviolent means of resolving the disputes that are inevitable in any pluralistic society.
Insulting, offensive, unkind, and even merely thoughtless words can hurt us profoundly. As a result, the self-protective human urge to censor runs deep, and the boundaries of what is considered permissible speech are always embattled. People who swear, hurl insults, make edgy jokes, or create dank memes stress-test those boundaries. Tolerance of such speech strengthens our commitment to freedom of expression.
We cannot legislate bigotry and hatred out of existence, nor can we control hearts and minds. We can only try to win them over. And our only tool for doing so is words. Speech must therefore remain as free as possible, both in the U.K. and throughout the world.
Iona Italia is a freelance writer and translator and the subeditor of Areo magazine. Her latest book is Our Tango World.
Editor’s note: Due to an editing error, a previous version of this article incorrectly implied papers could face legal risk for reprinting news of offensive words.
