Transposing the First Amendment into U.K. law would be an emphatic restoration of what England has lost, argues Harrison Pitt in the European Conservative. Here’s an extract:
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.
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.
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.
Worth reading in full.
