The free speech crisis in Britain has become an international news story. To many — particularly American — observers, the defining image of modern Britain is the fact that the British state prosecutes and jails British people for what they say online. 

It is hard to overstate the damage this will do to Britain’s image on the world stage. Elon Musk, owner of X and now a confidant of Donald Trump, seems to have made it a personal mission to expose the death of free speech in Britain, and he is attacking the Prime Minister for it personally. This is far worse for Britain’s reputation than the previous government’s hapless attempts to deport asylum seekers to Rwanda. 

Reports of the egregious harassment of journalist Allison Pearson by Essex Police over historic posts on X proved a tipping point and have ignited this story, garnering international attention. While free speech in Britain has been eroded for quite some time, this case has brought the issue to the limelight, likely thanks to Pearson’s prominence as one of Britain’s famous conservative columnists. 

This is a matter of law as much as it is politics and culture

While public sentiment seems to be generally on her side — other papers like The Times have followed the case with stories of police forces policing speech instead of theft — a minor culture war has erupted as well. Podcasting defenders of the Ancien Régime, like “The News Agents”, have equivocated on the issue, implying that she somehow deserved to be investigated. 

The Prime Minister has weighed in, suggesting that the police should spend more time solving burglaries than policing speech. All fine words, and very welcome, but we have been here before. Will it happen? 

This is a matter of law as much as it is politics and culture. There will undoubtedly be police officers driven to prosecute speech — see Merseyside Police’s absurd demo a few years ago entitled “being offensive is an offence” — but policymakers and politicians should look at the legal underpinning for these prosecutions and build a case for reform. 

There are four laws which are responsible for most of the attacks on free speech in modern Britain: the Communications Act 2003; the Malicious Communications Act 1988; the Public Order Act 1986; and the Human Rights Act 1998. Each of these have had their own role in the incremental reduction of free speech in this country, and they must be reformed or, in some cases, repealed if Britain is to see free speech revived and protected. 

Taking each law in turn gives an indication of the sort of damage each of them has done. For instance, the Communications Act and the Malicious Communications Act were written to prosecute harms in very different media environments. The Malicious Communications Act was intended to prevent malicious communications in written material, long before the internet age, and the Communications Act was motivated to prevent harassment via electronic means like email. Indeed, the Communications Act’s legal predecessor dates to the 1930s when Parliament legislated to prevent young men calling female telephone operators to make obscene comments to them. Both are much more direct, intentional, and personal methods of communication than we see in today’s online, and social media-driven world. 

For example, in 2022 Thomas Casserly was prosecuted for sending malicious communications with the intent of causing distress or anxiety after he emailed a local councillor in Cheshire. This was because he questioned her ability to represent her constituents and manage a local cemetery board due to being “profoundly deaf” and “partially sighted”, with “limited reading ability”. Despite political communications having a higher threshold than normal for prosecution, reflecting that elected representatives must accept the rough and tumble of public life, Casserly was convicted by a jury which was not even allowed to consider the wider context of this email being sent regarding public life. Two years later, this conviction was overturned on appeal, and higher courts recognised that it was a violation of Casserly’s freedom of expression. While the overturning of one case is welcome, there are many more miscarriages of justice where a British citizen’s freedom of expression has been violated by the Malicious Communications Act still on the books. 

Similarly, the Communications Act, specifically section 127, has become known as the law which sends people to jail for tweets. In 2012, a Welsh student was jailed for posting a racist joke about a footballer on Twitter. In 2023, a group of former police officers were jailed for offensive jokes shared within a private WhatsApp chat, after one disgruntled member of the group leaked the messages to the authorities. During the summer riots, Lee Joseph Dunn, from Cumbria, was jailed under this act for the crime of posting an AI-generated, anti-Muslim meme on Facebook. 

The Public Order Act 1986 has turned into a monster

These three cases represent the grave problems with this Act. First, none of these offences were direct, person-to-person forms of communication with the intent of harming a specific recipient, which is what the original laws were intended to stop. Second, in the case of the former police officers they represent an invasion of the assumed privacy of a private WhatsApp chat. Finally, however unpleasant one might find the content of these cases, they all amount to the prosecution of jokes, with custodial sentences attached. 

The Public Order Act 1986 has turned into a monster. While it is used to prosecute people committed in actual riots and disorder, it also functions as a kind of blasphemy law thanks to its provisions around incitement. While many people were convicted during the summer riots under this act for actually rioting, others were convicted for purely online communications. Lucy Connolley was jailed for calling for mass deportations and for burning down hotels housing asylum seekers. Laws against incitement have undermined Britain’s common law understanding of being free to do as we wish until we cause others harm. Incitement focuses on the theoretical possibility of one’s written statements causing other people to commit harm following their reading (and therefore interpretation) of them. 

Another example, though there are many more, concerns Ian Sleeper, who was investigated by the Metropolitan Police for holding up a banner in Southwark which read “Love Muslims, Hate Islam, Jesus is Love and Hope”, in the wake of the Borough Market terrorist attack, where jihadists murdered eight people. The police officers who arrested him said that even holding the sign was a criminal offence. Sleeper was banned from entering the Borough of Southwark for six months. While charges were subsequently dropped, the police forces have clearly decided to use the Public Order Act to suppress criticism of a specific religion, in this case Islam. 

Finally, the Human Rights Act, despite nominally respecting freedom of expression, has been central to the creation of judge-made privacy laws, which have greatly suffocated the freedom of the press. These laws have developed out of case law following Article 8 of the Human Rights Act, not parliamentary deliberation, and have been accused of undermining press freedom when it comes to stories concerning the affairs and personal wrongdoings of politicians, businessmen or celebrities. 

Further column inches could be devoted to the way in which football fans are banned from singing particular songs at matches — no tributes to King Billy allowed — the explosion of authoritarian Non-Crime Hate Incidents, categorised by the police, or the rise of “buffer-zones” around abortion clinics. However, these four laws sit at the heart of Britain’s free speech crisis. Despite having codified free speech, under the Human Rights Act, we have nothing approaching a free speech culture as they do in the United States. Cultures take time to develop, but laws can be repealed with a Commons majority and some sharp thinking. This must be a top priority for any future reformist conservative movement. British liberty and prosperity depend on it.