To win back free speech, Britain needs a new constitution, argues Preston Byrne.
The problem:
What is happening today, it seems, is that the entire population of the UK is in the midst of realizing that whether a controversial idea may be safely expressed depends, in large part, on the hearer, and not the speaker.
Current law fails the rule-of-law test:
the law hands police and magistrates wide discretionary powers to decide which viewpoints are acceptable, depending on the social or political mood at the time and on the ground.
Legislation can not seem to fix the problem:
Because every legislative fix proposed in recent years has failed to address the root problem: the doctrine of parliamentary sovereignty. This is the idea that the King-in-Parliament wields unlimited power with no guardrails, and has long been a foundational principle of British constitutional order. The British state does not concede the existence of any legal limits on its own authority. Individual rights have become casualties of rigid adherence to this ancient doctrine, which, plainly, no longer serves the interests of the society it governs.
Byrne goes on to argue that the application of speech laws has changed over time due to fashion. The only real solution to that is absolute free speech like that granted by the US First Amendment.
All entirely true.
Prospects for action-nil.
When you can’t speak freely, protecting speech is nigh-on impossible.
At one level (the public) the problem is the idea, increasingly prevalent, that one should be protected from discomfort-in particular, the discomfort of listening to something with which you disagree.
At a state level, it suits any elite to have levers to silence dissent.
It contrasts so badly with British tradition. I seem to recall that T H White describes (in The Age Of Scandal) a party, including Horace Walpole, taking a coach to parliament through demonstrators pelting them with bricks. I don’t believe any of them suggested forestalling the right to speech.
Yes indeed – both he post by Rob Fisher (citing Preston Byrne) and Clovis Sangrail’s comment.
This is a movement in law that goes back a long way – in legal philosophy way back to thinkers such as Thomas Hobbes and Jeremy Bentham (and David Hume – although pointing this out does offend some people) denying that humans are free-will-persons with rights AGAINST the state (and private persons) under natural justice – and in practical law since at least the Act of 1965.
A whole series of Acts of Parliament (concluding with the Equality Act of 2010) have “doubled down” on the doctrine that people must be forced to think a certain way, hold certain opinions, and may NOT express thoughts contrary to these doctrines – this state control, we have been told for 60 years, we lead to happy society – with what is now called “Diversity” and “Inclusion” – well we have got the state control, the indoctrination via the education system and the media, and the endless attacks on Freedom of Speech – but we have certainly not got he happy society these things were supposed to lead to.
The difficulty is that now only is the King-in-Parliament committed to the above (the present House of Commons is the most ANTI Freedom of Speech House we have had in centuries – as for his Majesty I make no comment, other than to refer people to the Monarch’s Christmas broadcast of 2024), but also the JUDGES, indeed the entire legal system, is committed to these doctrines of indoctrination and the crushing of Freedom of Speech and Freedom of Expression – when they are held to be against “Diversity” and “Inclusion” and might “give offense” to certain special groups of people with protected characteristics.
So there is no one to write a British “First Amendment” and no judges and legal profession who could be trusted to enforce it.
For example, the Mexican Constitution of 1917 (this is relevant – please bear with me) has clear statements supporting Freedom of Speech and and the Right to Keep and Bear Arms – yet neither exists, in practice, in Mexico.
People are “legally” punished for their words in Mexico, for example for words that are held to offend the “Trans”, and ordinary honest people (as opposed to vicious, and politically connected, gang members) certainly have no functioning right to keep and bear arms to defend themselves and other honest people.
Appointed judges have “interpreted” away Freedom of Speech and the Right to Keep and Bear Arms in Mexico – and the recent move to elected (rather than appointed) judges is unlikely to change this.
So who would write a pro liberty Constitution in the United Kingdom – it could not be Parliament or the legal profession, neither of which believes in these principles, and what judges would enforce it – rather than “interpret” it away?
Sadly, as Senator Cruz often points out (for example in a recent book) no fundamental right is safe against a United States Supreme Court decision – and we know what sort of (Blarite) Supreme Court we have in the United Kingdom.
Using ‘government’ to fix ‘government’ is to invite later interpretation by the courts, I’m afraid.
Perhaps a better way forward would be to oblige complainants to provide evidence of the ‘cost’ of their offence. The implication being that ‘hurt feelings’ are not enough to establish a case.
Perhaps, PERHAPS, a pro liberty CULTURE is needed for good Constitutional provisions to “stick”. Otherwise we get such cases as Illinois where the Constitutional requirement (in the Constitution of 1970 – so not some ancient document) to balance the budget is “interpreted” by the courts to mean “balanced by borrowing” (which is so perverse that it is hard to imagine a more corrupt “interpretation”), or California – where a basically good Constitution has been “interpreted” into a horrific nightmare by intellectually perverse judges – ruling on the basis of things that are NOT in the Constitution of California, and ignoring the things that ARE in the Constitution of California.
Britain has a pro liberty culture when, for example, Sir John Holt was Chief Justice (1689 to 1710), but it does not now.
Although light years from perfect, perhaps (PERHAPS) Texas is the largest (in population) example of a place that, to-some-extent, has a pro liberty culture.
Note than I wrote Texas – not the United States of America, which is a much more complicated matter.
Constitutions reflect the people who create them. They don’t create the ‘people ‘ governed under said constitution.
When John Adams said the US constitution that ‘our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other’, I think he understood this.
The constitution wasn’t going to make the people moral and religious. It was created because the creators emerged from an overall moral and religious culture.
With free speech you can have a constitution claiming it is a constitutional right but if the wider culture and even more importantly the elites don’t believe in it, such constitutional ‘protections’ will be quickly circumvented.
If course, in the Britain of 2025, the idea the elites of Britain would organically to create a new constitution modelled on that of the late 18th century American one is for the birds.
It’s not an ancient doctrine, it’s from 1688, and was hard fought for, killing and exiling kings to get to that point.
Any written constitution would just embed the Left even more deeply than the ECHR and the Human Rights Act already do. So the answer has to be a very firm “No way!”
Aetius
As a Brit, I don’t believe that the mishmash of ‘guaranteed by law’ freedoms are worth the paper they are written on. There is no freedom of speech (see Lucy Connolly). Freedom of movement or right to assembly can be summarily cancelled (see COVID). There is currently no freedom of religion (see Hamit Coskun) or right to equality before the law (see the sentences handed out in the wake of the Southport riots).
Much as I think a US style constitution would be a good thing for Britain, I can’t help thinking that that ship has sailed. The resulting word salad that we’d no doubt end up with if we asked our current King and Parliament to bash out a constitution would be, as was the EU constitution, an overly complex document that, far from guaranteeing freedoms and liberties, would ultimately further entangle the citizen in a Gordian knot of petty rules and regulations.
Nothing short of a national trauma will change the mindset needed for us to embrace the freedoms and liberties of yesteryear.
Or, wot Aetius said, innit!
I can see a British constitution written by the Blob guaranteeing “rights” to health care, housing, education etc, in other words entrenching the Big State and all its social programmes as “constitutional rights”, provided by big government to little people. Any protections from the overreach of government will not be there, because the writers of this constitution will not be able to conceive of any such need.
Because every legislative fix proposed in recent years has failed to address the root problem: the doctrine of parliamentary sovereignty.
I do not agree. The root problem is that the British people want hate speech laws. They have been convinced, by fair means or foul, that unadulterated free speech is not a good thing, that some speech is violence, that some things are so terrible that the speaker should be in jail.
Laws and constitutions are mechanisms, in theory at least, for expressing the will of the people. For sure laws are manipulated to advance the will of the state irrespective of the will of the people, but if, at the base level, the British people are not in favor of free speech, all the mechanisms in the world won’t fix the problem. Unadulterated free speech seems to be outside the Overton window in Britain right now.
Even here on this place the idea of “I might hate what you say but will defended to the death your right to say it” has been described as the idea of an “imbicile” by one commentator. When you can’t even convince the advocates of liberty of the need for absolute free speech, your cause is largely lost.
@Windypants the problem with the idea of a British constitution is the same as the one I have just stated. Which is to say that you would not get to write it. I’m sure you’d do a great job if they’d let you. But they wouldn’t. It would be written by the people currently in charge. I don’t think we’d like the result.
In my porch right now is a 21″ 4:3 CRT Trinitron monitor. I bought it years back secondhand for a song. When that was new… Wowsers – several hundred quid – thick end of a grand maybe? I’m putting it up for sale. It should fetch maybe 300 quid.
Odd isn’t it? Why? Retro-gaming is back in fashion! Lots of things are because that is how fashion works. And fashion isn’t just clothes or music but, as I’ve got older, and seen things not just come and go but come back again I’ve begun to think fashion is the most powerful force in the Universe with respect every aspect of the human experience. What can make this sometime difficult to discern is that it never quite repeats the same way exactly.
I have a “feory” that this applies to free speech and tolerance and such like as much as to hem-lines or people wanting to play Doom on an old screen. There is a common tendancy to think we have become a generally more tolerant society over the years where it’s OK to be gay and stuff. They call it “Progess”. I’m not sure. What I think is that there is always somethings that society won’t tolerate and that perhaps that level of taboo is a constant but what changes is the nature of what is and isn’t accepted. Societies define themselve by what is beyond the Pale and whilst the issues vary there is always a Pale.
Take a currently burning issue… People like J K Rowling have been put beyond the Pale for stating the biologically obvious and accussed of “hate speech” by folks who think holding a placard saying, “Suck my trans dick you TERF cunt!” is channeling the second coming of MLK. I guess in this case it really is fashion. I mean gay and lesbian rights are sooo last century dahling! Where it’s at in the ’20s is of course the TQI++ not the LGB. When Oscar Wilde was convicted of sodomy people burnt his books in an orgy of self-righteousness. Their “intellectual” descendents are now asking online if it makes them a “bad person” to have read Harry Potter.
A hundred years ago calling Jesus a “twat” would get you side-lined from polite society. Nowadays it’s no longer even edgy. Calling Muhammed for what he was will get you into a World of Pain.
I agree entirely with those comments above that state that this is not just about legislature. It is much deeper. That is part of the reason I reference fashion. Did, for example, the punk look come from Vivienne Westwood, Malcolm McClaren and The Sex Pistols or were they taking it from the street? I suspect neither and both are true and it was a complex interaction. I like my idea that the thinking of our dear leaders and the most exalted jurists is, at a deep level, as well thought through as a teenage girl’s choice of which boyband to follow and which to abhore. Over the years the teenagers and the boybands change but the principle remains. It makes a lot of sense to me.
Just make me Lord Protector, I’ll sort it. As a compromise, myself and Paul Marks as Consuls/ Capitani Reggenti on the San Marino model but with more power, and we can sort it all out.
Plenty of denizens of this parish could serve in our place on our passing.
Just be mindful of Gandalf’s warnings against taking the One Ring and how it corrupts (as Lord Acton told us).
Yeah, I am that commentator, and I stand by what i said. Only an imbecile could advocate fighting to the death for free speech.
Take Perry, for instance: what if HE fought to the death for free speech? what would happen to Samizdata if he did?
Take Paul Marks. What if he had fought to the death for free speech, before we got into an argument about Hume? I would not have studied what Hume actually wrote, without the urge to make sure that Paul is wrong. (And i discovered that I was wrong, too, about what Hume actually wrote about Liberty and Necessity. Two people who disagree, can both be wrong.)
So, only an imbecile could think that fighting to the death is a sensible strategy to defend free speech. (And only an imbecile could say that it is w/o thinking it is, purely for rhetorical effect.)
For a constitution to have any heart, any guiding principle, it must be drafted and enacted following a bloody conflict, by the winners only.
It must represent entirely the winning side’s paradigm of justice.
Every other possibility has to involve negotiation and compromise between opposite philosophies, a process which cannot produce an internally consistent statement of a nation’s soul.
All that ever happens otherwise is you produce a statute book with supermajority protection.
@Snorri Godhi
Take Perry, for instance: what if HE fought to the death for free speech? what would happen to Samizdata if he did?
I imagine some brave soul would step up and take his place. What is it Churchill said? “An appeaser is one who feeds a crocodile, hoping it will eat him last.”
PS: I also note that Fraser despises people who have actually put their lives at risk to defend their freedom, and the freedom of their countrymen. Witness his opinion of Zelenskyy.
If Fraser disagrees, he is welcome to mention a few people whom he admires for defending freedom against fearful odds.
(I could mention a couple of dozens, including about half a dozen BC.)
— added in proof: Fraser, YOU are the appeaser.
You, and all American-style libertarians.
He who fights and runs away lives to fight another day?
But sometimes, charging that machine gun gives the optimal outcome measured in lives. (Good lives, I mean. On our side.)
So it’s all just situational.
@Snorri Godhi
PS: I also note that Fraser despises people who have actually put their lives at risk to defend their freedom, and the freedom of their countrymen. Witness his opinion of Zelenskyy.
If you think Zelenskyy is a defender of free speech I think you that you are mistaken.
@bobby b
He who fights and runs away lives to fight another day?
Sure, perhaps. It is indeed situational.
@Nick M – very interesting comment, thank you.
@Fraser Orr – Zelenksy is defending his nation’s freedom against an invader, which was the point SG was making, as I am sure you are well aware.
@Marius
@Fraser Orr – Zelenksy is defending his nation’s freedom against an invader
Maybe, but he sure as hell isn’t doing it by defending freedom of speech in his country.
The US Constitution was originally 4500 words long, with amendments it got to 7600 words. The 1980 constitution of Chile (under Pinochet) held about 25,000 words (it is in use still). The 2022 proposal (under Marxist president Boric) held 50,000 words. (It was rejected by the people in referendum).
Good luck with a new constitution for the UK, which would probably be 100,000 words long.
In general there is a tendency for producing endless streams of words today – which, like most things published, are mostly rubbish. (articles, essays, etc.). In the age of paper there was a physical constrain on the lengths of essays or articles – the paper itself (ex. bring me a 500 word essay). This constrain has been removed on computer screens. Now you can write as much as you desire. Consequently the quantity of rubbish has grown exponentially.
Here’s a thought experiment.
National religious book burning month. You can bring any religious book you want that you own and burn it. Nothing is to be said about which book it is yuou’ve bought- just get on with burning it. Am I inciting any hatred?
Fraser: you still have not produced any name of anybody who risked his life (or, in more than a few cases, her life) in an effective (not quixotic) fight for freedom.
Just in case you mention Churchill (which i would) let me remind you that there was less freedom of speech in Britain during ww2 than there is in Ukraine today.
Yes, that is implicit in what Sun Tzu wrote.
It is not, however, relevant to the debate between Fraser and your truly, if that is what you were addressing. Fraser’s position seems to be that one should never fight, except to defend the rights of one’s enemies — a fight that poses hardly any risk, when your own side is made up of decent people. Fraser knows that he is not even risking a fine by defending the free speech of campus antisemites.
Marius,
Thanks!
Jacob,
Forget about the rubbish. The longer things get the more likely they are to self-contradict. In the UK right now being “queer” is a “protected” thing. As is being a follower of a virulently homophobic religion. You can’t have both.
Quran, al-A’raaf 7:81
So, that’s Queers For Palestine, erm… buggered. Which neatly brings me to…
David,
That is interesting. Especially because the text isn’t disclosed. I mean obviously it may have caused “distress” to someone but we don’t know who that someone is! Brilliant! It is the perfect reductio ad absurdum. Personally I’d burn James Joyce’s “Ulysses” on the quiet to annoy Eng. Lit. graduates without them even knowing it!
See, I read it differently. I thought he said that we should never NOT fight for our deepest principles, even when we are not the main beneficiary of that effort – that adherence to the principle is more important than the specific effect our fight produces that one time.
And I can respect that. I took the position in a previous discussion that I would happily force the woke to live up to their own rules, even if I think the rule is bad. That’s practicality. Frazer Orr is arguing (I think) that principle should outweigh practicality. I think we must have both arguments – countervailing arguments – to maintain principle while not abdicating the struggle.
The tension between the positions keeps us in the game.
I don’t think that’s fair at all. Fraser is a very decent bloke, as best I can tell with my interactions with him, and whilst – yes, he might have have been fighting for the rights’ of his enemies re. Kneecap – more importantly he was fighting for a principle of free speech. I’m pretty sure there’s plenty of examples where he has robustly defended the rights to free speech for people on his own side.
If anything, the fact that he’s defending the rights of those who are, nominally, not his “side”, should be a mark of respect, not something to say poses “hardly any risk”.
I am close to bobby, and not too far from neonsnake, on this issue. In particular, i wish to comment on this:
I am in complete agreement that we should take the long-term view, rather than consider only the effect this one time.
For instance, defending the freedom of speech of Kneecap would be the right thing to do — IF their being sentenced for speech crimes would set a precedent.
The fact is, their being sentenced for speech crimes, in the UK today, would not set a precedent. Nor would their being absolved.
In this specific case, dogmatic adherence to principles seems self-destructive.
… But i am still waiting for Fraser to provide a shortlist of his hero(in)es. Once that is in, i can make a better assessment of where he stands.
My position on this is not complicated or hard to understand. I believe people have the right to say whatever it is, however vile. I don’t believe this only because of the bargain — I’ll let you say what you want if you extend the same to me — but because fundamentally people have a right to their opinions and the words they produce. Which is to say, it is none of the state’s business what I say or what you say.
This is not an unusual position within the libertarian community. In fact, it is the standard position among libertarians, and it is also the position of the first amendment of the United States, a fact which is the last vestige of the things that make the USA remain one of the greatest countries humans have produced.
This right is so precious I find the idea that one would use it is a club in any tactical political approach seems deeply wrong. It is why I would absolutely, without hesitation, nullify the verdict on any case involving speech crime on any jury I was on, even if it was banning dumb ass kids from yelling stupid stuff about Palestinians.
However, this is clearly not a position that many people hold. In fact this whole discussion demonstrates my point — even within this group of people who mostly advocate for liberty, there are plenty who don’t hold with my first amendment views on free speech. Which is why I say that discussions on changing laws and constitutions are meaningless. The first thing that Britain needs to restore its historical view of free speech is to convince Britains that that is a good idea, that censorship is bad. And that is a very long row to hoe, in fact I suspect that Britain is well past the point of no return. And for this I think BobbyB’s previous commentary on this is probably right, that British immigration policy has so radicalized the population that the British government are terrified of what might come of it were they not to censor speech.
Around 2002 I became aware of our membership of the EU and what it meant for our democracy and state. Attending local UKIP meetings, I learned of our acts of supremacy, our bill of rights, acts of settlement and union.
I was deeply unhappy that our government had taken the uk into political union with our neighbours and handed over legislative supremacy to the EECs institutions of government within several policy areas. As a patriotic Englishman, the situation was intolerable and the fact an elected government had done this without explaining it to the British people adequately in my opinion was betrayal. They acted beyond their just powers.
The more I learned about our history and state, the more I realised there are no limits to their powers. Elections themselves are granted by an act of parliament.
I read the US constitution. It has its own amendment clause. Since then, I’ve believed that’s what we need. We have no political rights or freedoms while any government that comes along can take them away. While the constitution is a creature of government and not the reverse.
I agree with this; and I agree with your later point that it’s going to be a hard thing to do.
I personally believe that it’s at least partly to do with fact (or maybe just perception) that many “defenders of free speech” don’t actually really believe in it – they just want their own speech protected. This whole discussion, and the other post that inspired it, seem to feed into it.
It’s very, very rare to see someone on the right robustly defending the free speech rights of, in this case, people who are against Israel’s actions in Palestine.
Likewise, for people of a more “liberal” bent, it’s rare to see them defend things said by those on the right – eg. Lucy Connolly. Or, more accurately, to defend not the thing said, as such, but their right to say it without fearing prosecution. I might personally think what she said was disgraceful (I do think that), but she absolutely shouldn’t have had even a visit from the plod for it, let alone imprisonment – it’s so ridiculous I don’t even have the words to express it.
I think that, to be fair, it probably is what most people describe as “liberals” who express outrage and calls for censorship when people say “iffy” things; but I think it’s important to note that the further left you go, the more likely you are to be on the receiving end of a knock on the door (I’m thinking here of the anti-monarchy/anti-government etc left, not the wishy-washy centrist-liberals), and indeed this does happen – it’s just not widely reported on by the right-wing Free Speech types*, which I suspect feeds into the idea on the left that the right want “free speech for me, but not for thee”
Secondly, I think that people massively need to understand that “freedom of speech” does not mean “freedom from consequences” – it just means that the cops (the pointy end of the state) shouldn’t get involved. Like, if I made a point of calling Fraser “Francine”, and then cried about “muh freedom of speech”, I shouldn’t be surprised if I got taken off his Christmas Card list, uninvited from his parties, and eventually, if I insisted upon continuing to do so, being given a smack. I think people get too caught up in the idea that the only way to deal with someone being an arsehole is to bring legal proceedings against them, when there’s many other (much more useful) options that don’t involve, essentially, “telling the teacher”.
Thirdly (and finally!) – I think people need to get comfortable with the idea that in a freer society, there’s going to be things said and done that you don’t like, and may indeed make you feel uncomfortable.
Tough shit, that’s the price for a free society. If you’re a vegan, you’re gonna need to deal with people grilling meat on a barbeque. If you’re straight, you’re gonna need to deal with people who aren’t. If you’re atheist, you’re gonna need to deal with your religious and preachy neighbour. If you like good music, you’re gonna have to deal with the existence of Imagine Dragons.
Some of these things may bother you, or even offend you. Tough.
*with some honourable exceptions – Big Brother Watch are fairly non-partisan, for an example.
Fraser:
Can’t you see that X having a (moral) right (in this case, to free speech) in no way implies that Y has a duty to defend this right for X, independently of the relationship between X and Y?
Let alone Y risking their life to defend it.
(NB: if there is an asymmetrical power relationship, with Y having a significant unchecked amount of power over X, then you could persuade me. But you have not made this case.)
— And you STILL have not given a single example of somebody who did the right thing in fighting for liberty. Why, exactly, should i believe that you are interested in fighting “the other side”, not just your own side?
Mind you, i have been prejudiced against American-style libertarians for close to a couple of decades now. I remember in particular a brief dispute with American libertarians who seemed to hold FDR responsible for the attack on Pearl Harbor, because he refused to sell to the Japanese the steel and oil that they needed to crush the Chinese armed forces.
And, in fact, if there is an absolute right to free trade, then it does follow that the Japanese were entitled to attack Pearl Harbor.
That is not generally true. What I *do* see is people on the ‘right’ argue that there is a two-tier approach to protest & expression of opinion vis a vis pro- and anti- Hamas protests. Also, I see people on the ‘right’ observe that as Hamas is a proscribed organisation in UK, why are people detained by police for holding up anti-Hamas signs? That is an argument for consistency & rule of law, not an argument against free speech.
Yes, it is generally true.
Examples of the right broadly and robustly defending people rights to be pro-Palestinian? (as in, pro-the Palestinian civilian population, not Hamas)?
I mean, even here, the discussion started with Fraser suggesting such a thing, and getting dog-piled for it.
There is clearly a problem with free speech rights in the UK and has been for many years, but you’ve basically proved my point by flipping immediately. Many, many more people have been arrested for being pro-Palestinian civilians (again, to stress, not pro-Hamas) than have been arrested for expressing pro-Israeli views. Our government policy (Note: Labour as well as Conservative) has been to suppress any solidarity with the ordinary citizens in Palestine:
https://publications.parliament.uk/pa/cm5901/cmpublic/CrimePolicing/memo/CPB76.htm
neonsnake:
I comment on this specific paragraph (leaving aside the rest of your comment) because it further illustrates the point that i tried to make in my latest comment.
What troubles me about this paragraph is: why exactly should i defend the right of people to be pro-Palestinian? what have the pro-Palestinians ever done for me?
Again: it all depends on power relationships. I would be the first … well, amongst the first, to assert that **the State** should respect the right of the pro-Palestinians to express their opinions. (Within reasonable boundaries: the State has no obligation to provide a forum at taxpayers’ expense. Also, the State does have an obligation to make sure that pro-Palestinian demos do not degenerate into Kristallnachts.)
But I am not the State. I have no obligations whatsoever to the pro-Palestinians. If they want my support, they have to earn it.
Except there is very little (if any) difference, no matter how much you might pretend that is not the case.
Wrong. I am pointing out what you what you think is taking a position against free speech for the other side is in fact an argument in favour of equality before the law. The ‘right’ (whatever that means) would have to be a special kind of idiots to not point out people marching in favour of Hamas are policed less strictly than people who depreciate Hamas.
We should indeed fight to defend the rights (under natural justice) of people whose opinions we despise – including their right to peacefully express their vile opinions.
And we should also fight to defend the rights of of people we admire – including their right to peacefully express opinions we agree with.
This is not complicated – people do not really “not understand it”, although they some may pretend not to understand it.
Sure. But what I actually said was “more accurately, to defend not the thing said, as such, but their right to say it without fearing prosecution”
Neonsnake: yes, of course, i got that. I still see no reason to defend THEIR rights. Broadly speaking, i’ll only defend the rights of people whom i trust to defend mine.
… Unless, as i said, there is an asymmetry of power.
Actually, I could probably think of other exceptions, but you get the idea.
No one seems to be addressing how a ‘British Constitution’ could be created. First of all, you either need to abolish Parliament and replace it with a new system founded on the basis that the successor is limited by a Constitution, or you attempt to ‘entrench’ legislation, making it impossible to repeal, perhaps by changing the Standing Orders or procedures of the House of Commons to make it impossible to bring in a Bill to modify legislation in certain areas which purports or might alter previous legislation on freedom of speech.
At present, the Speaker of the House of Commons is the sole judge of whether a Bill is a ‘Money Bill’ dealing with taxation matters (and so not subject to any delay by the House of Lords) and he can certify a Bill as a ‘Money Bill’ but crucially the system relies on a fundamental honesty in the political class (which still holds for Money Bills).
Perhaps Parliament needs a fourth component apart from Commons, Lords and King, of a Lord Protector, empowered to veto any Bill that violates the ‘entrenched principles’, provided of course that the Lord Protector has the principles and stomach for the fight, and crucially the power to enforce his vetos. Otherwise, if removing Parliament, what would replace it given the horde of freaks, weirdos and perverts who infest the political class, for whom holding (the illusion of) power is an all-consuming drive, meaning that normal people don’t get a look-in.
Mr Ed – we’ve had constitutional conventions in the past. We’d need a constitutional court. The constitution would need it’s own amendment clause. We’d need a bill of political rights. I don’t believe we’d need to change the structure of parliament too much. Naturally the document would start with the words, “We the people”. The monarchy could and should remain. The ultimate source of sovereignty being stated as the people. Not the monarchy or parliament.
True. But there is at least one other issue that has not been addressed: substantive constraints*, such as enumerated powers and a bill of rights, need to be backed up by procedural constraints*: checks & balances, separation of powers, devolution of powers, and democracy sensu Popper.
* I am using Samuel Finer’s terminology — not sure he originated it.
Just use our Constitution (USA) and adopt as controlling all of the published USSC cases interpreting it.
Then establish your own court to handle that task going forward.
You could do worse. (Obviously, change out the parts setting up gov structure.)
We could, and we did!
But ideally, one could interpolate between several decent constitutions, depending on local requirements. That seems to be the approach that the US Founding Fathers followed.
Some of my favorites, in addition to the US, would be Switzerland, the Dutch Republic, the Venetian Republic, and Viking Iceland.
I agree with Perry’s contribution here. Insisting that the government doesn’t censor speech and insisting that it enforce the law fairly are two entirely different things — both of them laudable. However, if the left say disagreeable things and are not prosecuted under an unjust law, and the right say disagreeable things and are prosecuted under an unjust law, the solution is not to increase injustice by insisting that the unjust law be applied to the left, but to get rid of the unjust law or at least acquit those unjustly charged.
And as I have said from the very beginning, the question I posed and answered is: what would I do were I on a jury and someone was being prosecuted for saying something I hated? I sure as hell am not going to increase the net amount of injustice by vindictively ensuring the accused is convicted with a satisfied “hypocrite, hoist on his own petard.” Rather if I am on a jury I am going to do what justice demands and acquit.
@Mr Ed
No one seems to be addressing how a ‘British Constitution’ could be created.
Because it isn’t really possible in the way framed, it would effectively involve the entire overthrow of the current system of government. And, insofar as it was possible it would be a bad thing. We got a taste of this, did we not, with the European Court of Human Rights which claimed supremacy over the laws of Parliament. And how did that work out?
I think it is also worth saying that your right to say what you want does not immunize you from other crimes. For example, I just watched a guy in LA spray paint “Kill ICE Agents” on a dumpster. I suppose he has a right to say that, no matter how horrific it is, but he does not have the right to vandalize the dumpster. Huge groups might have the right to wave Mexican flags in protest against deportations, no matter how offense and utterly upside down that is. But they do not have the right to block the public roads.
And on the other hand, free speech also does not give you the right to someone else’s microphone. Harvard University has the right to say and teach whatever crap they damn well please, but they do not have the right to public funds to enable them to do so. And activists can write whatever books they want about telling little kindergarten Johnny that he might want to cut off his penis, but the author has absolutely no right to demand that the local public or school library buy that book or stock it in their shelves.
Free speech is about saying things not doing things or demanding things from others.
Indeed, and as a practical matter, the best way to do that might well be ensuring the left are also hammered by said unjust law, and not just the right.
However, we may be past the point this can be fixed via elections & parliament, because that’s not where actual power now resides.
Mr Ed – yes the project to create a written British Constitution would be very difficult, and the document likely produced (given the British establishment “experts” who would write it – or “advice” those who did write it) would be an abomination.
Much less difficult for people, who have the financial means, to move to a place that already has a decent Constitution – such as South Dakota (which has its Constitution of 1889). Trying to create a, good, Constitution here in the United Kingdom would be so incredibly difficult that the proposal is not realistic.
Snorri – an interesting position, you are not saying that you will only defend the Freedom of Speech of people you agree with (which I, mistakenly, thought was your position), you are saying that you will defend the Freedom of Speech of those who will defend your Freedom of Speech – a sort of contractual position.
For example, you will defend the right of people to say that the world is flat – IF they will defend your right to say that the world is NOT flat.
Your position, now I understand it better, is not wildly unreasonable.
For example, Islam forbids people “mocking” Mohammed (as this computer system insists I spell is name) – it holds that people who “mock” Mohammed should be killed – so it would be outside the contractual “I will defend your freedom – if you defend my freedom” position that you outline.
I express no opinion on this matter – as I need to think about the matter further.
as the british people become a minority in their own homeland you can expect that with their death will also come the death of their notions of free speech. Camp of Saints has become the most prophetic novel ever written
Paul: yes, indeed. It is gratifying that you and others have read my comments dispassionately, even if they do not fit neatly into your pre-conceived schemes.
Of course, my “contractual position” is not at all an original idea; although seldom expressed explicitly.
In fact, it seems to be Fraser’s position, too — although he is not honest about it. Why does he attack Zelenskyy as an enemy of free speech, if not as a rationalization for opposing US support for Ukraine? But implicit in this rationalization, is the assumption that the US is not obliged to defend the freedom of people who are less than perfect in the defense of freedom.
I offered Fraser a way out of this, but he clearly has decided not to take it; so i assume that the above interpretation is correct.
Note also the issue of power asymmetries. The US, and Russia, have asymmetrical power over Ukraine; and they have obligations as a consequence of the Budapest memorandum. By contrast, there is no power asymmetry between pro-Hamas peaceful demonstrators (if any) and me. For this reason, i feel justified in refusing to support said demonstrators, while also claiming that the US should support Ukraine.
Sure, and taking into account your point about asymmetry as well, I can certainly sympathise.
I would and will “happily” defend the rights of those who wouldn’t defend mine.
I alluded to it earlier, but I believe that there is a widely held view amongst – I’m gonna say “woolly centrists”, but that probably isn’t wholly accurate, I just can’t think of a better description right now – that the only way to deal with people expressing awful views is to call on the power of the state (and that is one of the, if not the most asymmetrical power relations in existence).
By defending the rights of people that I not only don’t agree with their words, but I know wouldn’t defend my own rights, it shows that there is a different (and better) way.
I believe that if I go “Welp, you wouldn’t defend mine, so I’m gonna stay quiet whilst they throw the book at you, I’m doing no-one any favours, and I’m certainly not advancing the cause of free speech.
I would also note that realistically, most people would still defend the rights of those who disagree with free speech if that person has said something they agree with.
There are absolutely examples of people using legal proceedings against those who have said things that they disagree with, but who have – when they themselves have said something…questionable…want free speech to apply to them. I don’t believe that the “I’ll only defend those who will defend free speech broadly for everyone” are saying “Welp, I’m sorry, but this person who I absolutely agree with should have the book thrown at them, because equal application of the law!”
So, with all of that mind, I believe it is only correct to apply “I don’t agree with this law, so I disagree with it being applied to anyone – no matter what I think of them personally, or their own views of that law, or what it actually was that they did. I’m not prepared to say ‘unjust laws should be applied to everyone’ – they should in fact be applied to no-one.”
NS, I believe firmly that we all should not kill other humans. It’s a base, core principle.
However, if John aims a gun at me or my family, I’m going to very quickly kill him.
I would be violating a core principle in doing so, but I would be serving another, arguably more important, core principle.
When our highest principles contradict each other – and this does happen – we have to choose.
I don’t believe that this contradicts anything I wrote, but if it does, then put it down to a clumsiness in words on my part, it certainly wasn’t the impression I was hoping to create.
If someone has expressed an fairly plausible interest in killing you or your family, I (personally) don’t think you need to wait for them to draw; as much as I enjoy a good Western and the drama of “Say when…” from ‘Tombstone’, say, or any of the Man With No Name films, I would have zero issue with a…pre-emptive strike, as it were.
Much honour, very cinematic!
It’s a bit like the idea that there’s “no first strike in karate” – yes, I’m sure that looks like the case for those who have either – a) never practised karate (etc), or b) never been in a actual ruckus, but most of what looks like “blocks” are actually “strikes”, designed to end the altercation before it escalates.
I’ve no problem with that (it would, indeed, be very hypocritical of me to be otherwise!)
I’m more talking here about would I defend – for instance – Lucy Connolly. Yes, I would. Not her words, but her right to say them (I’m trying to think of examples where I utterly disagree with the words said bythe person I’m defending, to try to steelman it).
I would have different views if that led to “organising” in order to burn down hotels that had refugees in them, but there’s a difference between “saying something” and “organising”.
“Kill ICE Agents” on a dumpster. I suppose he has a right to say that
It is usual, and I think also correct, that an incitement to crime is not protected speech. So, no, the right to free speech does no protect you when you yell “kill ICE agents”. Or “kill the Jews”, or ‘kill the Israelis and Zionist Jews”, or “Kill the negroes”, or “Kill the white”, or “kill the bourgeois”..
The problem with most demonstrators (such as pro-Palestinian ones) is also not an issue of free speech but an issue of blocking roads and torching cars. That is not “speech”. Many protesters do that, eg: yellow west protestors in France.
The problem where you draw the line between “protected” hate speech and incitement to crime is a difficult and delicate problem.
@Jacob
It is usual, and I think also correct, that an incitement to crime is not protected speech. So, no, the right to free speech does no protect you when you yell “kill ICE agents”. Or “kill the Jews”, or ‘kill the Israelis and Zionist Jews”, or “Kill the negroes”, or “Kill the white”, or “kill the bourgeois”..
I’m not a lawyer, but I don’t think that is correct, in the USA anyway. Free speech is such a highly protected right here that the standard for punishing speech is extremely high. This is a case in point. “Kill all the Jews” is absolutely protected speech, it is not an incitement to a specific crime. “Kill Jacob Goldstein at 100 Acacia Lane” is not protected speech, because it is an incitement to a very specific crime. In fact (again not a lawyer) but it is possible that even that also might be protected unless the speaker took any action to actually do or conspire to do what he said. I’m not a lawyer though so I can’t necessarily distinguish some of these fine points of law.
However, you have to go pretty far, and you probably have to take action before your speech can be legitimately censored or punished in the USA — by the government anyway. It is one of the few great things that remain here, that along with the second amendment, which is quickly becoming a right only Americans have.
Always makes me laugh, but I remember a circumstance some years back, where I was on a train, and a very drunk bloke was wandering up it being massively offensive to anyone who wasn’t “British” in East London – ie. they weren’t conversing in English. I spent some minutes looking carefully, trying to weigh up whether to get involved or not – he was clearly just being a racist arse and needed a good kicking.
My girlfriend at the time was Argentinian, and was talking to her sister in Spanish, so when this little shit-bag turned his very drunken and aggressive attention to them, I, uh, just sparked him out. Probably should have done so waaayyyy beyond that, but I’d spent some minutes thinking “should I? Shouldn’t I?” and then went “lol, fuck off son” only when it impacted me or mine.
I remember someone on here – can’t remember who now – calling me a literal fascist for punching the guy out. Which was just like “oh, for the love of god”, what needs to happen before you’ll say “this isn’t free speech, this is sheer aggression and needs to be met with aggression in turn?”
(My only regret is that I waited until it was directly impacting me and mine)
@bobby b
However, if John aims a gun at me or my family, I’m going to very quickly kill him.
You have a right to shoot a person who is threatening you or your loved ones with harm immediately, at that time. Even if he makes the threat and you pull your weapon and the guy runs away, you do not have the right to chase him down like a dog and shoot him.
You do not have a right to shoot anyone who is a murderer or who might be a murderer, or who might advocate violence. You don’t even have the right to shoot someone who threatens you from afar. “Give me $10,000 or I’ll burn your house down” does not legitimize you shooting the person making the threat unless they are at your house with a can of gasoline and a match.
The same seems applicable to what I would do were I on that jury I mentioned.
Fraser Orr: “I’m not a lawyer . . . ”
Maybe not, but you got your point correct. “Threat of imminent specific harm” can be punished. (“There’s bobby b, kill him!”) Generalized threats (kill the Samizdatists!”) cannot.
Snorri – I think you might agree with the following position…
Even if someone is not prepared to fight to defend your Freedom of Speech, it is still a moral act to defend their Freedom of Speech – as-long-as they would not support your liberty being crushed.
I am thinking of pacifists, such as the Amish, they will not fight (period), but they are themselves not a threat to other people (because they will not attack).
It would be morally praiseworthy to defend the Amish (or other pacifists) from attack, say defend their right to worship in peace from people who would kill them for doing so – even though the Amish (or other pacifists) will not defend your liberty.
They would not defend your liberty – but they would not attack it either.
People who intend to destroy you are rather different matter – risking your life to defend people who intend to murder, or enslave, you, is indeed problematic.
As for Ukraine….
The Ukraine of today is a very different place from the Ukraine before Mr Putin’s invasion.
The much talked about violations of basic liberties (closing down opposition media, banning certain churches and-so-on) happened AFTER Mr Putin’s invasion – and I do NOT believe they would have happened had the invasion not taken place.
That does not mean that these policies were correct – but the context (a full scale invasion by a ruthless enemy) must be kept in mind.
Mr Putin practiced all these policies (attacking Freedom of Speech and so on) in Russia BEFORE going to war – so there is a difference.
Paul: briefly, before going to bed.
WRT the Amish, there is again the issue of power asymmetry.
I would go to some lengths to defend them. Not to extreme lengths, mind you, but to some lengths. That is because they are effectively powerless.
(Thinking of the movie, Witness, in this context.)
PS: I would also support the right of people claiming that the Earth is flat, even if they would not support my right to claim that the Earth is (approximately) spherical.
That is because a scenario in which flat-earthers could punish me for saying that the Earth is spherical, is so preposterous that it is outrageously funny.
Again, it is an issue of power asymmetry.
But of course i would not risk my life to defend the freedom of speech of flat-earthers.
Okay, I’m sure that I have beat on this dead horse for too long, but let me just throw this out there and then scurry away:
1. The laws regarding speech have become woke.
2. The important courts – which tend to be found in blue cities – enforce that woke law with a woke bias.
3. Many people have been ensnared by those laws, in those courts.
4. I lack the political power to change those laws, or those courts.
5. Conservatives are the ones taking the brunt of 1-4 above.
So, were I a juror being asked to enforce an actual legally-passed law that punishes certain speech, and I luck out so that I’m on a case in which the defendant is one of those woke people who would put me in lockup in a minute, I am certainly not going to let that defendant escape the consequences that he so loves.
And, at that point, there may be additional woke people who will come into my view of the freedom to speak, caused by seeing one of their own grabbed by the new regime.
I feel that I am thus serving my own principles more effectively than I would had I voted “not guilty” in that case.
It’s a disagreement on tactics, not on philosophy.
Thinking again about the Amish: they would not defend me physically, but they do pay taxes (don’t they?) which pay for their own protection, and mine should i happen to visit the US.
But it’s complicated. It’s a matter to be decided on a case-by-case basis.
For instance, what if someone would defend me because of my ethnicity, but would not defend people of other ethnicities?
Fortunately, i have never had to decide whether to reciprocate.
Neonsnake:
Ah, I remember your writing about this, and i also remember that you omitted the detail that the bloke was very drunk.
Which got me thinking: How could possibly a bloke be so provocative in a city where so many people get stabbed?? He must have been drunk. Which would make it easy to fight him off.
It’s comforting to know that i was right.
Snorri – I think it is morally praiseworthy to defend the Freedom of Speech (and so on) of peaceful people – even if they have very stupid opinions. Whether I would risk my life – I do not know, because I have not been in that situation.
As for defending people who want to murder, or enslave, you – that is indeed morally problematic.
The Western “liberals” who gush with compassion for people who wish to murder or enslave them and their families (and express extreme hatred for “right wingers” they believe are a threat to these people – the people who want to murder and enslave their own families), are rather absurd. To put the matter mildly.
Mark Steyn is an urbane, tolerant and cultured man – filled with the live-and-let-live attitude that used to be the defining feature of cultural liberalism – but he understood many years ago now that where the changing demography of so many Western nations was leading – that it would, if the trends continued, lead to the destruction of Western culture and all basic Civil Liberties – including Freedom of Speech.
A certain ex British Army Brigadier and Professor of Greek reached these conclusions before Mr Steyn did – as far back as the 1960s.
This was a man who had slept on railway platforms in India – rather than going to European only clubs, and had been one the few Members of Parliament to protest, in the 1950s, about the harsh treatment of “Mau-Mau” terrorist suspects in Kenya.
Yet he is considered a vicious “racist” and “Nazi” in modern Britain – the same modern Britain that celebrates (actually celebrates) Acts of Parliament that attack Freedom of Speech and other basic liberties – Acts that started in the 1960s.
For good laws and a good Constitution to have an effect there must be good judges to rule on them – rather than “interpret” them into the opposite of what they are meant to be.
And, as John O’Sullivan (the former adviser to Margaret Thatcher and now head of the Danube Institute) has pointed out – there is only one major country in Western or Central Europe (indeed wider than that – in the entire Western world) where the left (for want of a better word) does not have influence over the courts (over the legal system – the judges and so on) and that is Hungary.
I expect Hungary to be the next target of the International Community – and their “interpretation” of the Rule of Law – which is, in effect, the rule-of-the-left – regardless of what the text of the laws and Constitution says.
Bob, I don’t believe this necessarily follows – the people we’re talking about here are the woolly centrists who believe that the only way to resolve a dispute is by calling the cops. I’ve been deliberately provocative above by invoking “violence” as an answer, but there’s many other ways of dealing with people being arses (social consequences) ranging from “being removed from the Christmas Card list, to getting a quiet word from Big Chris at number 18 to ‘pack it in'”
The “proper” left are absolute believers in free speech, as are the specific members of the “right” that I think you’re talking about. What you’ve got is a huge middle section (from centrist liberals to centrist right) that believes that one “should not take the law into their own hands” (blah blah blah – the “they should have complied” bunch), and have a view that summoning the State (in the form of the cops) absolves them of responsibility, and indeed, is Proper And Correct.
I think that by upholding “anti”-free speech laws, all that will happen is that the “woolly centrists” will harden their stance against “you”; I don’t think they’ll come round to a “actually, these laws are nonsense” view. I think they’ll say, instead “Look! Look at the hypocrisy!”
(I don’t think you’re being hypocritical, to be clear, but I *can* see how that would be a takeaway)
————
I’ve thought a bit hard about the next bit, because I know I’m gonna get dogpiled for it, but what the hell:
I…do not…like Trump. I don’t imagine that will be a surprise to anyone on here.
But I’ve fought very hard indeed against the people that label him as a “felon” with the intent of that making him ineligible to be a President – whilst it’s factually correct (my understanding of US law is that he was found guilty of multiple felonies, but wasn’t punished any further for it – feel free to correct me).
Why? Because being a “felon” isn’t strictly something I’m against. There’s a whole bunch of people in prison for being “felons” for selling weed, for example, which I believe to be unjust.
I’ve many other examples, but I think that sticking up for your “opponents” as such is more powerful as a force of persuasion than subjecting them to their own rules.
That would be okay anyway. Do you know how many times in my years of doing criminal defense I got called a hypocrite?
“How can you claim to be supporting, fighting for, a “great legal system” when all of your work goes to thwarting it?”
Had I taken this simplistic view, I could never have defended people whom I knew to be guilty of doing things I hate. But I was supporting our legal system by doing so.
There’s a bit more nuance to the scheme of things than the simplistic surface view. Just as there’s a bit of nuance to voting on a jury to convict someone who has themself supported anti-speech laws.
@neonsnake
I’ve many other examples, but I think that sticking up for your “opponents” as such is more powerful as a force of persuasion than subjecting them to their own rules.
I think this is a great point, and it is often, though not always, true. What I do know is that a race to the bottom is a very, very bad idea. It is worth remembering that in that expression “how low can you go” there are a LOT of people who will go a LOT lower than any decent person who inhabits these environs.
@bobby b
I luck out so that I’m on a case in which the defendant is one of those woke people who would put me in lockup in a minute
How do you make that determination? If he is a Kamala voter, is that enough? If she is a person who has in the past expressed support for hate speech laws, is that enough? Or does he actually have to have done something specific to put someone in jail for illegal speech? Moreover, as a general rule, how could you possibly know since no judge would really allow any of that information as evidence in a trial, so you’d never hear it. Unless you did your own independent research, and that would REALLY piss off the judge and get you kicked off the jury.
And FWIW, in regards to your point about criminal defense lawyers, I think they are often admirable. No doubt there are some sleazy ones, but an important part of their job is to hold the government to the standard of civil rights set down in our laws and constitution, and that is a pretty honorable thing. FWIW, I am not a great fan of the jurisprudence of Justice Ketanji Brown Jackson, but I do very much respect that she acted as a public defender for some of the people detained in Guantanamo bay. I think that was both brave and honorable, and so although I disagree with her I do respect her. (Sotomayor on the other hand, I am fairly sure is a certifiable idiot, as in “how the hell did she get a law degree” stupid.)
If someone is out to murder or enslave you and your family, it may be unwise to assist them when they are in peril.
True a saint would do it – but saints tend to have their minds fixed on the next world, rather than on this one.
And it is not a matter of selfishness in a narrow and vulgar sense – as people out to murder or enslave you and your family, tend to want to do this to other people as well.
However, YES I support Freedom of Speech even for people pushing doctrines that would lead to my death – although whether I would defend such people “to the death” is problematic.
If most people where you live are sane enough to recognize calls to mass murder and be repelled by them, then freedom of speech is not dangerous, it is actually beneficial. It brings the vermin out into the sunlight.
If otoh most people around you are insane, then it is too late for censorship. Other solutions must be found, and usually the most practical solution is emigration.