Freedom of Speech
Free Speech: Free from what? Free from restrictions imposed by state, free from ‘prior
restraint’. The simple legal standpoint is that anything can be said unless the law prohibits
or constrains it. But this creates questions – Is it really free if can criminalise anything and
then cannot be said? What laws prohibit/constrain speech and are there any to protect it?
On what basis should laws prohibit or constrain speech? If something can be said, should it
be? Are there laws that actually compel speech? What should the consequences of
breaching laws on this area be? Some examples of these are the laws of defamation.
Laws that protect speech include constitutional law in many ways, some common law, the
rule of law and ECHR - Article 10 HRA 1998. These are laws with histories.
There is a current controversy with the Higher Education (Freedom of Speech) Bill which is
currently before Parliament. This bill would place a duty on higher education providers to
protect freedom of speech. It also places duties on students unions to do the same and
gives a right to civil action that can be taken in a failure to do so.
Constitutional Law and Context:
Article 10 ECHR
1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and receive and impart information and ideas without interference by
public authority, regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as prescribed
by law, and are necessary in a democratic society, in the interest of national security
territorial disorder or crime, the protection of health or morals, the protection of the
reputation or rights of others, preventing the distribution of information received
and confidence, or for maintaining the authority and the impartiality of the judiciary.
R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL33
“In a democracy, [freedom of expression] is the primary right: without it an effective rule of
law is not possible.” – Lord Steyn, 125
This is a substantive conception of the rule of law.
Common law or convention?
Free Speech: Free from what? Free from restrictions imposed by state, free from ‘prior
restraint’. The simple legal standpoint is that anything can be said unless the law prohibits
or constrains it. But this creates questions – Is it really free if can criminalise anything and
then cannot be said? What laws prohibit/constrain speech and are there any to protect it?
On what basis should laws prohibit or constrain speech? If something can be said, should it
be? Are there laws that actually compel speech? What should the consequences of
breaching laws on this area be? Some examples of these are the laws of defamation.
Laws that protect speech include constitutional law in many ways, some common law, the
rule of law and ECHR - Article 10 HRA 1998. These are laws with histories.
There is a current controversy with the Higher Education (Freedom of Speech) Bill which is
currently before Parliament. This bill would place a duty on higher education providers to
protect freedom of speech. It also places duties on students unions to do the same and
gives a right to civil action that can be taken in a failure to do so.
Constitutional Law and Context:
Article 10 ECHR
1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and receive and impart information and ideas without interference by
public authority, regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as prescribed
by law, and are necessary in a democratic society, in the interest of national security
territorial disorder or crime, the protection of health or morals, the protection of the
reputation or rights of others, preventing the distribution of information received
and confidence, or for maintaining the authority and the impartiality of the judiciary.
R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL33
“In a democracy, [freedom of expression] is the primary right: without it an effective rule of
law is not possible.” – Lord Steyn, 125
This is a substantive conception of the rule of law.
Common law or convention?
