The Misnomer About ‘Free Speech’

It is a commonly said phrase, both in person and online, “I have freedom of speech”. Most often espoused to defend the ability to say something highly controversial, hateful, or inciteful. But, the right to ‘free speech’ isn’t really a right that exists, at least not in the sense it might seem when one considers the term.

Within the UK, freedom of speech is actually a concept which is formed of several rights. These rights are, freedom of thought, conscience, and religion (Article 9); freedom of expression (Article 10), and freedom of assembly and association (Article 11). What these rights allow, is for a person to believe what they wish, to express their beliefs, and to do so in a public manner. However, there are numerous caveats within the law that restrict these, in turn, the right to free speech is restricted. In short, free speech is not free.

All these freedoms mentioned can be limited by the state if that limitation is necessary in a democratic society in the interests of public safety, protection of public order, protection of health and morals, or for the protection of others. Additionally, these rights within the umbrella of free speech, are balanced against each other and even themselves. For example, the state can lawfully restrict one person’s ability to freedom of expression if that expression is an undemocratic and dangerous step into another person’s right to religious belief. This principle is very clearly seen in legislation such as section 29B of the Public Order Act 1986, which states:

It is clear to see here that the Article 9 rights of one person can outweigh the Article 10 rights of another. A person does not have free speech if that speech is intended to stir up religious or homophobic hatred. That being said, the Act clearly allows for the protection of Article 10 within the private family setting, as such, a person is entirely free to express their hatred so long as this is within their own private home and not able to be witnessed by anybody who does not consent to this.

This principle is just as strong online, and in the modern age is much more prevalent, and can be seen in legislation such as the Malicious Communications Act 1988, which prevents sending any electronic message or communication (including Tweets, WhatsApp messages, TikToks etc.) that is grossly offensive, threatening, or knowingly false and intended to cause distress. This is clearly a very low bar and a significant restriction on ‘free speech’.

Many people still believe that they have an unfettered right to say what they want, to send any message, post any content online, offend anybody in any way, and that they are protected from repercussion by doing so. This is not the position under law, in fact, it hasn’t been the position in law for decades. All freedoms within the ECHR and Human Rights Act 1998 (bar Article 3) come with responsibilities, these responsibilities require the educated, careful, and considered utilisation of the freedoms.

Whilst it isn’t false that you technically can say and post and send absolutely whatever you wish, no matter how hateful, threatening, awful, and purely reprehensible, it is not true that you can do so without consequence and that you have an excuse to do this by virtue of this mysterious and ungraspable concept of ‘free speech’. The law can, and very much does, allow for severe consequences to follow from such expression.

Just because you have the right to freedom of expression, belief, and assembly, this still does not mean you can shout “bomb” in an airport and not be lawfully tackled to the floor and detained… You can, and you will. Freedom of speech is a privilege that must be exercised regarding the rights of others.

That being said, the right to freedom of expression, belief, and assembly are being drastically curtailed by the government. The ability to safely and peacefully protest draconian ideals is becoming more difficult, being able to strike and call out awful practices within workplaces is something the government are trying to roll back, and following your religion and ideals in private is becoming much more difficult with increased monitoring and numerous watchlists (some being implemented specifically for lawyers who try to defend the freedoms of others). This is why it is vital to not let these freedoms be stepped upon, we must continue to express ourselves, continue to march against injustice, continue to believe in our religions and express our cultures, regardless of the backlash! Once these rights have been broken down and all but destroyed, they will never be brought back without the most brutal of revolution.

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