Parliament Has Become the Worst Enemy of Free Speech

Too many of our laws are being used simply to silence 'unacceptable' views

By Philip Johnston

The cause of free speech has produced some unsavoury champions down the years, but few can have been less attractive than John Wilkes. During the current debate about press regulation, this 18th-century degenerate has often been cited as an exemplar of the sacrifices made in defence of liberty. Indeed, in his time, Wilkes was a national hero. Yet today, his reputation has dwindled almost to naught, and his name and activities are highly unlikely to feature on Michael Gove’s list of historical facts that all schoolchildren are expected to learn.

But they should – because Wilkes, for all his flaws, embodied the spirit of liberty that is a defining characteristic of this nation, but which is all too easily undermined by indifference and ignorance.

By all accounts, including those of his friends, Wilkes was an unpleasant individual. He was a member of the Knights of St Francis of Wycombe, otherwise known as the Hellfire Club or the Monks of Medmenham Abbey. This libertine group made the Bullingdon look like the Mothers’ Union. It was renowned for its debauchery, its anti-Catholic ribaldry, and orgies with women dressed as nuns (during which members dressed in Franciscan robes).

Wilkes’s renown as a defender of free speech stems from an event that took place 250 years ago this month: the publication of issue No 45 of a radical newsletter called The North Briton. This was a virulently anti-government pamphlet that Wilkes, an opposition MP, penned with his friend Charles Churchill in order to torment the prime minister, the Earl of Bute. It was a scabrous riposte to a government-friendly paper, The Briton, edited by Tobias Smollett, the novelist and historian.

The North Briton was the Private Eye of its day, only without the latter’s customary restraint or attention to facts. Insults, scandal and rumour were its stock in trade, with attacks on senior members of the Establishment that were extraordinary for the time – even if they might now look uncontroversial. 

But on April 23, 1763, Wilkes over-reached himself with a sustained attack on the King’s Speech for the new parliament, which was considered an unacceptable piece of lèse-majesté. Wilkes was arrested and charged with seditious libel – only to be cleared by sundry juries and re-elected to the Commons on several occasions, even when the authorities tried to bar him from standing. He was a true people’s tribune, and a hero to the Founding Fathers of the United States of America. The free speech provisions in the US constitution, and several subsequent rulings of the American courts, cite the Wilkes case; yet in his native land he is largely forgotten, save when free speech is under threat, as it is now.

Wilkes fought for the right to publish an opinion, however outrageous or erroneous it might be, without being told by people in power what to say or prevented from saying what they did not want to hear. Until relatively recently in this country, this was the accepted state of affairs. By and large, people were free to say what they thought, provided they did not incite violence; state regulation of newspapers was considered anathema.

Yet today, neither is true. People have been arrested and sent to prison for making “hateful” statements that were not physically threatening. And Parliament, for the first time in 300 years, wants to force the press to subscribe to a set of regulatory structures set up by the state.

The hate laws introduced in recent years are, in reality, the attempted prohibition of ideas that are considered inappropriate because they do not conform to the views we expect to hear expressed in a civilised society. But as long as there is no attempt or intention to provoke violence, should that be a matter for the criminal law? Some take the view that we need laws to protect minority groups from abuse; but the problem is that such laws can also be used to shut down perfectly legitimate opinion, for instance on the rights and wrongs of gay marriage.

There have been attempts to stop this slide. In January, Theresa May announced that it would no longer be an offence under Section 5 of the Public Order Act 1986 to insult someone. Yet at the same time, the Home Secretary acknowledged that this would make no difference, because the word “insulting” could safely be removed from the Act without undermining the ability to bring prosecutions.

In other words, this was not a victory for free speech at all, since the various cases that triggered the campaign to repeal this provision (like the arrest of a preacher for saying homosexuality was a sin) would still have gone ahead and will do so in future. The amended statute will allow the police to arrest people on the same basis as before – for expressing views that might be considered offensive, but which in a free country they should be allowed to say. That is why, as I argue in my new report for the think-tank Civitas, the relevant section of the Act should be scrapped in its entirety.

We have far too many laws in this area circumscribing free speech – not just Labour’s hate crimes legislation, or the Public Order Act, but also the Communications Act 2003 and the Malicious Communications Act 1988. As a result, the police and prosecutors are able to move from one to the other to close down views deemed to be unacceptable.

The fault here lies with the foe that Wilkes fought, even though he was a member of it: Parliament. The conclusion that the Americans reached when they introduced the First Amendment to the constitution was that the legislature could not be trusted to uphold free speech. It states bluntly that “Congress shall make no law… abridging the freedom of speech, or of the press”. That leaves legislators unable to interfere in any way at all with free speech, whereas here they have done nothing but meddle.

We do not have a written constitution – or rather we do not have a constitution that is codified. But as Lord Judge, the Lord Chief Justice, said in an important and insightful speech shortly before the Leveson Inquiry began its work, “the fact that there is nothing in statute which states expressly that the independence of the press is a constitutional principle does not diminish the principle”. Lord Judge also quoted Wilkes: “The liberty of the press is the birthright of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country.”

As Lord Judge observed, this was a more profound observation than it at first appears. Wilkes, he said, “was asserting that the liberty of the press is the birthright of every citizen, that is, the community as a whole. It is a birthright of the citizen that the press should be independent. It is therefore not a right of one section of the community, not just a sectional right. It is the right of the community as a whole. It is, if you like, our right, the right of every citizen. And that is why, if you accept it as I do, the independence of the press is not only a constitutional necessity, it is a constitutional principle.”

So, too, is free speech. And as a constitutional principle, it must be inviolable – defended from interference not just by this Parliament, but by those yet to come. 

Philip Johnston’s new report, 'Feel Free to Say It’, was published this week by Civitas