The English establishment has always struggled with free speech. In the early 60s, this was true of the dominant conservative and managerial class (think Lady Chatterley, D-notices, regular surveillance of communists, and so on). Today, by contrast, free speech hang-ups affect the educated liberal professional elite who make up the new establishment: witness their demands for such things as safe spaces, speech codes and the vigorous suppression of microaggressions.

Establishments, however, can buck the trend. A case in point is last week’s Law Commission report on an issue crucial to free conversation and debate: how far we ought to criminalise harmful or hurtful communications. The Commission, an official body set up in 1965 to update the law on a rolling basis, is a quintessentially new liberal establishment: run by civil servants and headed by a combination of middle-ranking law professors and some unusually cerebral legal professionals. Yet its report, following a consultation last year, is gratifyingly pro-freedom and pro-free speech. 

The law sweeps up a great deal of conversation that should not come anywhere near a criminal court

This matters, because free speech is currently in a pickle. Take, for instance, one of the most notorious fetters on it, section 127(1) of the Communications Act 2003. Having originated as a 1930s law against saying indecent or grossly offensive things over the phone, aimed at yobs who misused phone boxes to insult the operators (then invariably female), it now applies, because of a rush of technological zeal in 1984, to any “public electronic communications network”. As a result it is now a crime, carrying a possible six months inside, to say anything indecent or grossly offensive, whatever that means, anywhere at all on the internet. In the last few years it has seen one man heavily fined for a Youtube video showing his dog doing a Hitler salute, a feminist penalised for being rude on social media to a trans activist, and another campaigner threatened with a criminal record for the heinous crime of misgendering another trans activist.

Again, take another notably intrusive silencing measure, the Malicious Communications Act 1988. This makes it an offence to send any letter or email to anyone if it contains anything indecent or grossly offensive and is intended to cause distress or anxiety to the recipient or anyone else seeing it. Less abused than s.127, it is still apt to sweep up a great deal of conversation that should not come anywhere near a criminal court.

The Commission in its report sees both prohibitions as unacceptable fetters on forthrightness, carrying an obvious chilling effect on everyday speech. It recommends abandoning both and substituting a much narrower and simpler offence (incidentally even more circumscribed than the one it originally proposed in its consultation with stakeholders — including the Free Speech Union — last year). Criminalisation should, it says, be limited to cases of communications likely and actually intended to cause serious distress to a probable audience. Intent would be essential, and even then the sender would have to have acted without any reasonable excuse. News media, moreover, would have a blanket exemption: another innovation successfully urged by the Free Speech Union.

This is clearly right. The present law is worryingly vague and catch-all, particularly because in practice what is grossly offensive or indecent is very much in the eye of a beholding magistrate, whether in Carlisle or Crawley, and the chances of a successful appeal are pretty slim. The present law also gives far too much power to the police to placate pressure groups and others to tell anyone with strong views to pipe down and threaten them with a criminal record if they don’t. 

There is more good news, too. Another existing offence covers passing on false information with a view to causing someone else annoyance or needless anxiety, thus covering very large numbers of trivial matters and practical jokes. Quite rightly the Commission says this also is far too wide. It should narrow to cover only communications intended to cause noticeable injury or psychological harm, another clearly correct decision.

Arguments about free speech between liberal establishment bodies and conservatives have been like shadow-boxing

Admittedly not all the news is good. For example, tucked in as part of an entirely innocuous proposal to make it a crime to threaten to cause people serious harm, there is also a proposal to criminalise moves or threats to cause anyone serious financial loss. This needs watching, since it would seem to cover (for example) calls for book boycotts of Robin diAngelo, or J.K.Rowling, because of their views on racial politics or trans rights, and for that matter campaigns to avoid BP or Trafigura because of their despoiling of the Third World. All these are apt to cause serious loss; there is no justification for criminalising any of them.

Again, even in its new narrower form, the offence of intentionally causing severe distress could be over-wide. If I post images of Mohammed on Facebook to mock Islam, for example, it is a racing certainty that some Muslims will be severely distressed, which might allow a court to infer that I had intended that effect even if that was not my primary purpose. This should still not be a crime, even potentially.

These are all matters where those who seriously believe in free speech need to watch the government (which has cautiously welcomed the proposals) like a hawk. But standing back for a moment, the fact that an impeccably liberal elite body has come down so emphatically in favour of freedom of speech, and indeed has hardened its position since last year, is itself notable. 

One reason for this may be the surprising strength of the pro-free-speech argument directed at the Commission: an unexpected proportion of the reasoned submissions suggested the consultation was too narrow.

But this may be indicative of another, more interesting, political shift. Hitherto arguments about free speech between liberal establishment bodies (broadly free speech sceptical) and conservatives (increasingly free speech supportive) have been like shadow-boxing, with each party starting from different viewpoints and neither engaging the other. Thinking conservatives today tend to support free speech as reinforcing existing social institutions: in this case the practice in English society that people should say what they think and then work out for themselves where truth seems to lie. Discomfort to others is a bit of a side issue: speech should generally be curtailed only if it threatens the fundamentals of society itself, for example by directly fomenting violence. For liberals, by contrast, looking at individuals in a more abstract way, hurt to others has been seen as central. There is moreover nothing extra-special about speech: if speech causes harm, that is a reason to ban it in the same way as one would ban anything else. Of course the idea of freedom of speech might counter this; but this is a much less powerful version of free speech as an abstract value, connected with such matters as dignity, often viewed through the mirror of human rights theory, and to be weighed in the balance with other values. 

With liberals in the ascendant, the result hitherto has been creeping limits on what we are allowed to say, with conservative arguments being dismissed as irrelevant or beside the point. But the thinking of the Law Commission last week may suggest that things are changing. If one part of the liberal establishment is becoming more receptive to the broad conservative view of free speech as a valuable social institution in itself, this is indeed good news. We must certainly hope that this is true, and that it continues.