There’s no threat to free speech, you idiot. For a decade or more that’s been the high-status opinion in Britain where censorship is concerned. The same liberal-ish sections of society who might once have railed against encroachments upon speech and thought – back when Mary Whitehouse was suing Gay News and the Thatcher government was the one passing the censorious legislation – have become remarkably chilled out about state and legal censorship, even as it has proliferated around us.
I hope they’re not snarking now. A Times investigation published at the weekend has surely knocked the censorship deniers’ legs out from under them. Not only do people continue to be arrested in Britain for things they say online, it’s also been rising in recent years. There are now 30 arrests a day for ‘grossly offensive’ speech under Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988. And that’s only two bits of legislation, and some police forces didn’t respond to The Times’ inquiries, meaning the true number of speech arrests is likely to be much higher.
To put that into perspective, purely going by those incomplete numbers, Britain is comfortably arresting more people over speech today than America did during the First Red Scare, when the First Amendment was essentially toothless and the American elites were gripped by anti-Communist hysteria. Greg Lukianoff, president of the US’s Foundation for Individual Rights and Expression (or FIRE), crunched those numbers a few years ago, back when the number of ‘grossly offensive’ arrests we knew about was significantly lower.
We now know just how trivial an indiscretion can earn you a knock at the door. Maxie Allen and Rosalind Levine had their home raided in Borehamwood because they’d criticised their daughter’s school too vigorously. They were cuffed in front of their kids, held for hours and subjected to a five-week investigation for harassment and malicious communications. They were eventually told there would be no further action, along with a growing proportion of suspects accused of communications offences. The Times reckons arrests are up by 58 per cent since the pandemic, even though convictions have simultaneously gone down. The combination of vaguely worded laws and overzealous policing has apparently led to an explosion of entirely unnecessary arrests.
One speech criminal who has summoned up significantly less sympathy is Lucy Connolly, the Northampton childminder who was sentenced to two years and seven months for inciting racial hatred, over a vile, hateful missive she posted in the wake of the Southport stabbings. Seemingly in response to rumours swirling online that those three girls, slain at a Taylor Swift dance class, had been killed by an asylum seeker, Connolly took to X and said: ‘Mass deportation now, set fire to all the fucking hotels full of the bastards for all I care, while you’re at it take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist, so be it.’ Connolly is also back in the news following an eye-opening exposé by Allison Pearson in the Telegraph, detailing Connolly’s swift and punitive treatment by the authorities as racist riots ripped across England. (Her case will be in the Court of Appeal next month, with the support of the estimable Free Speech Union.)
It might be tempting for free-speechers to look away from cases like Connolly’s, to pick our battles more carefully, to focus on those, like those parents in Borehamwood, who only appear to be filled with hatred for incompetent school leadership. But that would be a mistake. We must stand up for free speech even when the speech in question was clearly despicable, as it was in Connolly’s case. I’m sure we all know many people who were deeply upset over Southport but managed not to take to social media and begin talking darkly of migrant hotels going up in flames. But you don’t need to condone or excuse what Connolly said to know that no one should be banged up – for almost three years, no less – over a tweet. Over words.
There are those who insist this tweet is different. Connolly was calling for – or, more accurately, revelling in the prospect of – violence. But there is obviously a fundamental difference between geeing up a torch-wielding mob and raging into the social-media ether, before deleting your post a few hours later, as Connolly did. She may well be guilty of a crime according to the letter of the law. We’ll see at the appeal. (That said, what Pearson has uncovered about how the case was handled still raises some serious questions about proportion and fairness.) The more fundamental question, however, is: should we have such draconian speech laws in the first place? To which the answer is no.
Of course, incitement to violence and true threats should be illegal. This is where speech crosses the line into menacing behaviour or the commission of violent crime. This is even true in America, which – thanks to the First Amendment and successive Supreme Court rulings – today has a free-speech jurisprudence so robust it would make Keir Starmer quietly yellow his y-fronts. But what successive US justices have pointed out is that these offences must be tightly defined. Incitement in the US must be both intended and likely to cause imminent lawless action. Even advocacy of violence and lawbreaking in the abstract is protected. Because otherwise you risk breaching into policing thought and speech. For, as Supreme Court justice Oliver Wendell Holmes so memorably put it in a landmark dissenting opinion 100 years ago, ‘Every idea is an incitement’.
The lesson of Lucy Connolly and Britain’s slide into censorship more broadly is that freedom requires vigilance, consistency, principle. If you concede that some speech is so ‘hateful’ it must be silenced, you grant the state the power to decide what can and cannot be said, meaning that, soon enough, all manner of merely ‘offensive’ speech will inevitably be swallowed up. We must defend free speech for all – especially at the extremes. We must defend it for Islamist hotheads who chant ‘From the river to the sea’, knowing full well what they mean by it, and childminders who have lost everything over a moment of bigoted madness. The alternative is burning down everyone’s liberties.
Tom Slater is editor of spiked. Follow him on X: @Tom_Slater
