Ever since he taunted Volodymyr Zelensky in the Oval Office, I have disliked JD Vance. I sincerely hope he never becomes president. So it goes against the grain to admit that I fear he got something right when he said Britain has a free-speech problem.
There is, obviously, no objective measure of this. Since few people believe that the right to free speech is absolute, we have to find a balance between people’s right to express themselves as they wish and society’s interest in peace and harmony. The reason I think there’s a problem is the increasing number of cases which I reckon that reasonable people would feel we’re getting wrong.
The case of Lucy Connolly, whose appeal against her sentence was rejected by the Court of Appeal this week, seems to me one of those. The tweet for which she was jailed, in which she called for mass deportation and said “set fire to all the f***ing hotels full of the bastards for all I care”, was morally wrong and dangerous. But she took it down less than four hours after posting it and expressed remorse. Jailing her for 31 months, especially at a time when the government is rewriting sentencing rules to shorten the time that serious sexual and violent offenders serve, seems excessive.
These days it’s mostly people on the right who are exercised about free speech, but state censorship is an equal-opportunity business. On Wednesday an Irish singer with the band Kneecap was charged with a terrorism offence for displaying the flag of Hezbollah, a banned organisation, during a concert. That also seems to me excessive.
These are both difficult cases that reasonable people might argue either way, but in many recent instances the state has got it more obviously wrong. Anti-abortion protesters, whom Vance cited in a speech to the Munich Security Conference, have been arrested for praying silently outside abortion clinics. One, who had been holding a placard saying “Here to talk if you want”, was fined £20,000. A couple were arrested and held for eight hours for writing emails and WhatsApp messages criticising their daughter’s primary school. Six retired policemen were given suspended prison sentences for sending grossly offensive messages on WhatsApp. A man is on trial for burning a copy of the Quran in front of London’s Turkish consulate; this has led to suggestions that blasphemy is being criminalised once more. I could go on.
More than 30 people a day are being arrested for online posts. And then there are “non-crime hate incidents” in which the police pop round to warn people about things they have said or done that fall below the criminal threshold. Police recorded 13,200 of those in the year to June 2024.
The right tends to blame state-sponsored “wokery” for eroding freedom of speech. That’s a misreading of what’s going on. The criminal justice system does not have a left-wing bias but it does have a bias against people who do or say offensive things — often racist or Islamophobic — because its job is to keep order and they may cause disorder. Keeping order is increasingly hard, because globalisation leads to the clash of cultures on and offline. As the tension between the need to keep order and the protection of free speech grows, the latter is losing out.
The laws under which people are being investigated and charged pre-date the era of social media. They were written in a world in which publishers were organisations, and individuals expressed their views in private conversations. Subsequent attempts to bring them up to date fail to take into account the fact that these days individuals post on Facebook, X and WhatsApp as they once would have held forth at home or in a pub. So Connolly was convicted of publishing material intended to stir up racial hatred under section 19 of the 1986 Public Order Act. This was intended for newspapers and political parties, but her tweet sounded like an angry woman holding forth in a bar. The ex-policemen thought they were having a private conversation but the law doesn’t recognise online communications as private.
Since online posts are more dangerous than private comments, it might seem reasonable to punish their authors accordingly, with a view to encouraging caution. The publicity these cases have received may well be leading people to be more careful about what they post, but there is a cost to that. The notion that the state won’t let people say what they want both fuels conspiracy theories and exacerbates the already widespread discontent with our system of government. That’s dangerous.
Free speech has muscular constitutional protection in America, whereas in Britain the protection in the Human Rights Act is so hedged as to be feeble. That puts a greater responsibility on our politicians to safeguard our liberties. I don’t believe that Labour is waging a “war” against free speech, as the Free Speech Union claims, but I think it is being careless with it. The Employment Rights Bill, for instance, gives employers a responsibility to ensure that workers do not suffer harassment in the workplace, which could force publicans to stop customers from making off-colour jokes.
The government should be pushing in the other direction. It should allow people to have private conversations online, reduce the penalties for posting offensive opinions, get rid of the idea of “hate” crimes altogether and stop the police from investigating “non-crime hate incidents”.
Ultimately, it’s up to us to protect free speech. We are inclined to defend it vociferously when an opinion we share is being silenced, and go quiet when the target is one we oppose. But it will flourish only if we take Voltaire’s approach: “I disagree with what you say, but I will defend to the death your right to say it”. Those aren’t actually his words (they’re his biographer’s) but the principle will serve us well.