Britain’s War on Free Speech Echoes Its Darkest Past

In the Telegraph, Robert Tombs warns that Britain is sliding back into a dark age of thought crime, where free speech is no longer protected by law but crushed by mobs, bureaucrats and fear. Here’s an excerpt:

Many readers will know the neat witticism that begins “In England, everything is permitted unless it is forbidden” and ends “In Russia, everything is forbidden, especially when it is permitted”. It flatters a certain idea we have of ourselves as both law abiding and free. But it also gives an insight into our present problems over freedom of speech and thought – which include police targeting social media users for “non-crime hate incidents” while prominent musicians call for the death of Israeli soldiers live on the BBC, with apparent impunity.

We do not have a clear, familiar and authoritative guarantee of freedom. Many countries do. The most famous is the First Amendment to the United States Constitution: “Congress shall make no law… abridging the freedom of speech, or of the press.”  …

There is no mention of freedom of speech in Magna Carta, needless to say, or in the 1689 Bill of Rights (other than the Bill of Rights setting out protections for parliamentarians over what was said during debates) – though even if there were, it would not be binding on today’s courts. The consequence is that our freedom of speech, writing, discussion and even of thought relies on ever-changing and often hasty legislation and on court interpretation; hence, in reality, it is subject to changes in cultural norms, ideological fashions and political opportunism. 

I do not think that England or Britain can claim to have an established history of freedom of expression, and we certainly cannot be secure today in enjoying whatever freedoms we have. …

If we take a long view of history, the idea that freedom of expression is good in principle is fairly new. Heresy was made a capital crime in 1401 and moreover was a very unpopular offence, like possessing pornographic images of children today: wives denounced their husbands, for example. Treason – which, like heresy, could end in a very painful death – included talking or speculating about the monarch’s death. Political discussion could be sedition. …

A view developed in the 18th century (as the American and French constitutions testify) that some liberty of thought and expression might be desirable enough to exalt to the status of a universal principle. It began as an acceptance of the inevitable: an intellectual truce after generations of religious conflict had shown that unity of speech, thought and belief could not be imposed, even with hot iron. …

The 19th Century in some ways saw a tightening of the limits of free expression. Though the state no longer imposed draconian penalties for political criticism, and religious diversity was at last fully recognised, the general cultural atmosphere became less permissive. A Russian exile observed that “the freer a country is from government interference, the more intolerant grows the mob”. This reflected a collective effort to civilise and regulate a turbulent and rapidly changing society through education, exhortation, economic pressure and, not least, strict policing. …

The three decades beginning in the 1960s were undoubtedly the greatest age of free expression in Britain. It became generally accepted in all but the most conservative circles that such freedom was both a human right and a benefit to society. The Lord Chamberlain stopped censoring plays in 1968. Toleration of ideas that one disliked was seen as a necessary part of living in a civilised country. It would have been unthinkable for writers or academics to be threatened, dismissed or discriminated against for their words or opinions. How long ago this now seems! …

Most limits on free expression throughout our history have been based on the preservation of public order: in other words, on the likely or possible outcome of what was said. At one end of the scale, treason attacked the political order. Sedition risked causing riots. Slander and libel upset the social order at the individual level. Hence, it made a great difference whether the words were true or false, intended or unintended, public or private. Falsely shouting “fire” in a crowded theatre was an offence. In the privacy of one’s home it was not.

It seems to me – apologies to lawyers who might disagree – that blasphemy is essentially different. While it may also be seen as an offence against public order, it is principally an offence against an angry divinity: not only a crime, but a sin. In theory, blasphemy is not yet a crime in England, nor is it regarded even as a just cause of outrage when it concerns Christianity, once its sole concern. Nevertheless, blasphemy is severely punished. Not by law – at least not yet – but by illegal or informal action.

This is most obvious in the case of Rushdie, or of the teacher at Batley Grammar School who showed pupils illustrations of Mohammed, and who was forced to go into hiding with little or no support from his employers or his trade union, and, it seems, no effective protection by the police. I could list many similar cases, but they will be all too familiar to readers. The present debate in Parliament over a new definition of “Islamophobia” raises the possibility of the reintroduction of a blasphemy law by the back door. …

The law is encroaching into the private realm, including overheard conversations. For example, how will employers, made liable for the harassment of their employees by third parties under the new Employment Rights Bill, prevent such abuses without deploying an army of snoopers? …

To rely as in the past on a permissive void in the law – that everything is permitted if it is not legally forbidden – is evidently insufficient. It is no longer enough that freedom of expression should be permitted. It also has to be defended. 

That the law has not been fairly or equally applied in recent years is widely believed, and although such “two-tier” justice is, alas, pretty standard throughout history, it is always an abuse – as Magna Carta so memorably declared 800 years ago. 

All those who value individual liberty and freedom of expression as the foundation of a civilised and functioning society must work to make the state and the law the active champions of freedom and not, as often, its enemies, not least through loosely drafted legislation that lends itself to repressive applications. The Telegraph journalist Allison Pearson learnt the hard way how such laws – in her case invoking the “perception” of an unknown “complainant” – could be used to intimidate critics of the police. …

There is a long and hard road to follow before widespread damage done by activist minorities – sometimes taxpayer-funded – can be undone. But the indispensable first step must surely be to protect freedom of speech so that error and falsehood can at least be contested without risking dismissal or ostracism. England should be a country where “what is not forbidden is protected”.

Worth reading in full.