The English-speaking world has long enjoyed free speech rights unheard of in other parts of the world. But where did this legal regime come from? And as partisan strife becomes more heated on both sides of the Atlantic, what does free speech’s future hold? In his new book, Law & Liberty contributing editor Adam Tomkins argues that understanding the history of our rights is essential to maintaining a free constitution. He joins James Patterson on the podcast to discuss his book, On the Law of Speaking Freely, as well as several pressing current free speech cases in the United Kingdom.

On the Law of Speaking Freely by Adam Tomkins
“The UK’s Speech Problem,” by Adam Tomkins
“From Heresy to Hate Speech,” a book review by Helen Dale
Cato’s Letters by John Trenchard and Thomas Gordon
Areopagitica by John Milton
Adam Tomkins’s Law & Liberty author page
GB News v. OfCom

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Today with me is Professor Adam Tomkins, who is the John Miller Professor of Public Law at the University of Glasgow. Today we’ll be talking about his book On the Law of Speaking Freely. Dr. Tomkins, welcome to the Law & Liberty Podcast.

Adam Tomkins (01:08):

Thank you so much for having me, James. It’s great to be here.

James Patterson (01:10):

So we have reviewed your book very favorably on our website, and now we are getting to talk to you about it. I’m very excited about this. As I said before we were recording, this is a book that I wish I’d had to assign to students because so much of the history you cover is a common history with the United States and with the UK. So why don’t we start there? There’s a kind of nexus of rights that appear at the dawn of the Reformation. There’s rights of conscience, rights of assembly, rights of publication or press, and rights of speech. How are these all interrelated?

Adam Tomkins (01:51):

Yeah, so I think that’s absolutely right. I write, I’m a law professor and I write about the constitutional law of a country that does not have a codified constitution. So there is no equivalent in the United Kingdom Constitution of the US First Amendment. So I can’t start a book on free speech by quoting what it says about freedom of speech in the text that everybody agrees is the Constitution. I have to work my way towards that. And of course, freedom of expression is protected in British constitutional law. I was going to say just like it’s protected in American constitutional law, but it’s not just the same actually, but of course freedom of expression is protected in British constitutional law. But because we don’t have a codified text, we don’t have any equivalent of the US Constitution in the UK, we need to do the work of showing, of demonstrating where that idea comes from.

(02:48):

And there’s a trend at the moment in British constitutional scholarship to do as if the fundamental principles of the constitution can be taken for granted. And I just don’t think, I think they need to be argued for, contended for and the only place that we can go, I think in order to establish what those principles are, the principles on which the British constitution is based, the only place we can go is history. So unless and until you understand something of the history and the making of the constitution, you really don’t understand anything of the contemporary law of the constitution. I would say that that’s true whatever constitution anywhere in the world you’re looking at, because I think it’s also the case in the United States that the more you understand of the history and making of the US Constitution, the more you’ll understand of the US Constitution.

(03:35):

So even where you have a codified text, you need to have some sense of where these things came from and who was talking about them and why they were talking about them and all of that kind of stuff. So the first question I asked myself in the argument in this book is, well, where does the idea of free speech come from? We know why we think it’s important. That’s quite well received information even in the twenty-first century. We know that there’s a sort of argument about truth, and we know that there’s a sort of argument about participating in a democracy and that freedom of speech is a necessary ingredient of these kinds of things. But where did it actually come from? And when you look back, when you peel away the various layers of the onion and you look to what the starting point is of the story of free speech, you learn two things.

(04:21):

The first thing that you learn is that at least in European terms, it’s a very recent story. And the second thing that you learn is that it doesn’t start off in the domain of politics. It starts off in the domain of theology. And the first battles for free speech were fought only about 500 years ago. Now, perhaps in some of the New World, 500 years feels like an awfully long time ago, but trust me, in a constitutional order that goes all the way back to Magna Carta, which is more than 800 years old, 500 years is nothing, right? So it’s a relatively recent idea. So it’s much more recent than the idea of democracy, which goes back two and a half thousand years. It’s much more recent than the idea of citizenship, which goes back at least two millennia, right? It’s much more recent than the idea of a balanced constitution or even the separation of powers, which are ideas which you can trace all the way back to ancient Rome, if not ancient Greece.

(05:16):

There is no equivalent of freedom of speech in the ancient world. It comes to Europe at the same time as the printing press comes to Europe. Because until the printing press the purpose of writing, very few people of course could write marginally, more people could read, but very few people could write. And the purpose of writing was not to say anything new. The purpose of writing was to try and inscribe what we already knew, principally, of course, it would be biblical texts, it would be the Bible, and monks would sit and for hours and hours and hours and try not to say anything new. What they would try to do is to write down and preserve knowledge. And anything which challenged that knowledge was regarded as heresy and heresy was a capital offense, not just in Britain, but across Europe. And of course the first advocates of free speech are the first proponents of free speech or what became free speech were Protestants in the Reformation in the middle of the sixteenth century who were seeking to break away from the rule of the Catholic church.

(06:24):

Now, Martin Luther was not exactly your conventional twentieth century free speech proponent. Martin Luther burned books himself. It is true that his books were burnt by the Pope, but he also burnt books. So he wasn’t particularly in favor of interpretations of the Bible that he disagreed with, and particularly in interpretations of St. Paul that he disagreed with. But that the struggle for free speech emerged out of the struggle for freedom of conscience, which really starts to come to a head in Europe in the sixteenth century in what we now call the Protestant Reformation. So the first claim I make in the book, James, is to say that you can’t understand anything about the history of free speech unless you accept and understand that it’s deeply entwined in the history of freedom of conscience.

James Patterson (07:10):

That’s right. And the first fights are between Protestants and Catholics. And of course the kingdom of England becomes Anglican, breaks away from the Catholic church, and then there are fights with the Scottish, the nature of the ecclesial order, right? There’s the wars over reformed interpretations of the ecclesial order with bishops not necessarily being allowed, which then means that because the church belongs to the crown, dissent is now a crown issue as much as it is a religious issue. So this brings us to all kinds of different restrictions on the press in the form of licensing. And I find that students often don’t appreciate that when there’s a discussion of freedom of the press, what’s often going on here is the idea of a licensing arrangement and how is this linked to the idea of freedom of speech?

Adam Tomkins (08:03):

Yeah, absolutely. So when the printing press came to Europe, the legal position in English law was simply that the crown assumed the right to license the press right from the very beginning. So there was never a free or an unlicensed press in English history because as soon as printing became a technology which was available, the crown simply assumed the right to license it. And it did that for two reasons. It did that partly because it was terrified of its potentially revolutionary potential, even in a largely illiterate country of what that might mean and what that might become. But also, of course, it was a revenue raising measure, right? As soon as you license something,

James Patterson (08:53):

Yeah, that’s right.

Adam Tomkins (08:54):

Right, you can charge a fee for a license, and printing was a source of revenue for the crown and was a source of revenue for a crown that was always desperately short of money and looking for new ways of being able to tax subjects of the crown without having to ask Parliament for permission. I mean, no taxation without representation was a great mantra of the American Revolution, but with all due respect to the great American revolutionaries, they didn’t invent it.

James Patterson (09:22):

Yeah, we got it from somewhere.

Adam Tomkins (09:23):

They got it from somewhere, they got it from us. And so here was a means whereby the crown could tax its subjects in an extra parliamentary way and also at the same time control the flow of information. And so there was never such a thing as a golden age of a free press. This had to be fought for, it had to be struggled for, it had to be fought for. One of the greatest proponents of an unlicensed press in the English seventeenth century was the great poet, John Milton. And Milton was up to his eyes in what was then revolutionary politics. He was an ally of Cromwell’s. He was a fierce and passionate and extraordinarily brave republican or commonwealth man, to use the seventeenth century expression. He wrote a pamphlet before the King was executed in 1649, arguing that regicide was a constitutional way to proceed.

(10:23):

He argued immediately before the crown was restored in 1660, that it shouldn’t be. So Milton was extraordinarily brave, but he didn’t always agree with Cromwell. And, Cromwell, well, licensing collapsed in the English Civil War. Quite a lot of things collapsed in the English Civil War. Wars can do that to governments. It can be quite hard to hold a government together when the country’s fighting itself. And licensing was one of many things about English government that collapsed in the early 1640s. And when it became clear that Cromwell was winning the Civil War, he sought to reimpose it. And Milton didn’t like licensing even when it was in Cromwell’s hands any more than he liked licensing in the days when it had been in the king’s hands. And he wrote this remarkable pamphlet in 1644, very famous pamphlet called “Areopagitica,” in which Milton argues for an unlicensed press.

(11:20):

And that’s really the first time in our language that there is an argument constructed for what becomes freedom of speech. Now, the freedom of speech that Milton was asking for, was arguing for, was far from complete, and it was also very partial, but nonetheless, it planted seeds which in subsequent generations were allowed to flourish and grow and Areopagitica is an extremely important stepping stone on the way to an unlicensed press. Milton’s argument was unsuccessful. Cromwell did reintroduce licensing, and it wasn’t until the end of the seventeenth century that the licensing act lapsed, and it lapsed under the influence much more of John Locke’s arguments than it did of John Milton’s arguments, and Locke’s arguments were really very different from Milton’s arguments. Milton’s arguments were about the Christian duty that all God-fearing Christians have to struggle towards their own truth, to struggle towards God’s truth. And the only way in which you can do that is by reading works which are bad, wrong, evil, and figuring out for yourself why they’re bad, wrong, or evil.

(12:33):

Milton makes this great distinction between eating poisonous meat that can really do you serious physical damage and reading poisonous words. And he says that the government may very well have the duty to keep its citizens safe from poisonous food, but it does not have a duty to keep its citizens safe from poisonous or bad ideas. That’s Milton’s contribution. And as I say, that argument failed in the 1640s, and licensing was reestablished by Cromwell and sustained thereafter in the restored monarchy of the 1660s and ‘70s. It collapsed eventually in 1695 for an altogether different reason. And the reason that might appeal to a lot of our listeners, it was a reason about trade. John Locke had spent quite a lot of his time in Amsterdam in the Netherlands where there was an unlicensed press, and he liked the fact that books were produced to a very high standard in the Netherlands.

(13:33):

They were well printed on paper that wouldn’t immediately rot and corrode as soon as you tried to turn it. Good quality printing, good quality books. And what Locke hated about the licensed press in England was that because it was a monopoly, it wasn’t a very good product. And he was a writer who wanted his works to be read, and he wanted his works to be read in books, which were a pleasure to read, a pleasure to hold, and wouldn’t fall apart as soon as you started to try and work your way through them. And so his argument against licensing was that licensing was in restraint of trade, and that argument was successful in the 1690s, and the House of Commons voted not to renew the licensing legislation, and it lapsed from 1695. So it’s been the case that from 1695 onwards, the press in the United Kingdom, what later became the United Kingdom, what was then England, has been unlicensed. And that’s what freedom of speech meant even a hundred years later.

(14:35):

So when Madison writes the Bill of Rights, when the third amendment in Madison’s Bill of Rights becomes the First Amendment to the United States Constitution in 1791, what Madison has in mind when he writes those famous words, “Congress shall make the law bridging the freedom of speech,” is we shall have an unlicensed press. That’s what those words meant to start with. Of course, that’s not what they mean anymore. They mean much more than that. But the original meaning of the First Amendment was to put into US constitutional law what had by that point been the position in English common law for a century that the press must be unlicensed.

James Patterson (15:15):

Speaking of Madison, the founding generation was very influenced by Cato’s Letters, and these are kind of like the next generation of defenders after Milton and Locke, right?

Adam Tomkins (15:29):

Yes, that’s right. So Cato’s Letters is not very widely known outside of the academy, right? I mean, that’s right. A lot of people have heard of Milton and not just because of the poetry. A lot of people have heard of Locke and not just because of what he said about licensing, but not many people have heard of Cato’s Letters. Cato’s Letters were written by relatively obscure Commonwealth Whigs, quite radical Whigs in the early eighteenth century, in the 1720s, in the early 1720s to be exact. And most of the Catos, there are about 130 of them, I think. And they were published weekly over the space of a couple of years, 1720, 1722, that kind of period that we’re talking about. And most of the arguments in Cato’s Letterss haven’t got anything to do with free speech at all. Most of them are about corruption. English government, or by now British government, was seriously corrupt in the early 1720s.

(16:24):

The most famous example of it was the collapse or the bursting of the South Sea bubble in which a lot of people lost a lot of money. It’s one of the things that Jonathan Swift, who writes, Gulliver’s Travels later on in that decade in 1726 parodies in Gulliver’s Travels. So the big theme of Cato’s Letters is the striving for a government that is free of corruption. But along the way, the authors of Cato’s Letters, John Trenchard and Thomas Gordon, write four letters in particular scattered throughout the series that are focused on freedom of speech. And the reason why they’re important, James, is because they are so far as we can see the first avowedly secular argument for freedom of speech in the English language. So Milton’s argument in the 1640s is a very Christian argument is a deeply rooted in his own sense of Christian faith and destiny.

(17:22):

Locke’s arguments are likewise imbued with his commitment to religious belief and to Protestantism of course. And Cato’s Letters are written not very long after Locke dies. I think Locke dies in 1704. Cato’s Letters written less than 20 years later than that are the first avowedly secular argument that we know of in our language in favor of freedom of speech. And that’s interesting because it marks a moment when advocates of freedom of speech start worrying a lot less about the power of the church, and they start worrying a lot more about the power of the state. So the way in which I phrase it in the book is to say that we move from the age of heresy into the age of sedition. Okay? So heresy is a crime that you can commit simply by your words. You can also commit it by act, but you can commit the crime of heresy by speaking against the received doctrine of the church.

(18:20):

And it’s recognized as a crime not only in Catholic countries, but also in Protestant countries. And Catholics were burnt at the stake in England and Scotland for their anti-Protestant or anti-Anglican heresy. Sedition is different from heresy because it is a crime that is committed against the government, against the administration, against the ministry of the day, and it is also punished differently. Heretics were burnt at the stake, as I said, burnt alive at the stake, absolutely barbaric, a brutal treatment. Those who were convicted of sedition were sentenced to be pilloried, and that’s a word we still use metaphorically. But the pillory was like the stocks, your hands and your neck would be put into stocks and you would stand in the pillory. Typically, if you were sentenced to stand in the pillory, you’d be sentenced to do that three times in three different places in London.

(19:20):

And the idea behind that punishment was that you would be publicly ridiculed. And that’s, that’s sort of the way we still use the idea of being pilloried. Now you say somebody is pilloried, then they are publicly ridiculed for what they’ve said. The pillory was not a capital sentence. You wouldn’t be killed by the criminal justice system, but you could suffer serious bodily injury in the pillory if the crowds didn’t like you because you’re defenseless. So people could have mud stuffed into their mouths and unable to breathe. People could lose in extreme cases and eye, your eye could be gouged out, your ear could be cut off, your fingers could be broken. So it wasn’t altogether safe to be pilloried. And people did try and avoid it, but it wasn’t …

James Patterson:

I can imagine!

Adam Tomkins:

… it wasn’t the capital offense in the same way that heresy was.

(20:12):

And Trenchard and Gordon and the Cato’s Letters that are focused on free speech are arguing specifically about the law of sedition, and they’re arguing that a sedition needs to be treated with great care. And again, the thing that’s interesting about that is that you cannot commit the offense of sedition until after you have published. So their argument is not an argument simply against pre-publication censorship like Milton’s was, and Locke’s was. Their argument is going much further. Their argument is saying that even after you have used and exercised your right to speech, there are things that the state should not be doing to you because you have the right to use your words in such a way as criticizes the government of the day. You might not have the right to use words so far as to seek to bring down the government of the day or ferment revolution. But at this point in the early eighteenth century, we’re beginning to learn how to distinguish between arguments which are arguments against the constitutional order itself from arguments which are simply opposed to the government of the day. And so long as you’re on that side of the line, you are opposing the government rather than trying to bring down the constitutional order itself. Then the argument in Cato’s Letters is that that is something which ought to be protected by an emergent idea of freedom of speech.

James Patterson (21:36):

Now, the pillory dons the cover of the book On the Law of Speaking Freely, and it looks like they’re being subject to some pretty nasty vegetables or fruit being hurled at them, but I don’t see any broken fingers, so thank you for not putting that on the cover. But “pillory” is one word that we use still to this day. And another one of these terms that we use for restrictions is the star chamber. And so what was the Star Chamber and what does it have to do with the free speech tradition of the Anglo-American variety?

Adam Tomkins (22:16):

The Star Chamber was what we would call a prerogative court. So the prerogative is the power of the crown and what has happened, the story of the British constitution, I mean the classic wig story of the British constitution is that over the course of the last nine centuries or so, the power of the crown has gradually come under control. And that control comes partly from the courts and partly from Parliament. So we have a government that is required to enjoy the confidence of the House of Commons, as soon as the government loses the confidence of the House of Commons, that government has to resign. That’s what happened to Prime Minister Boris Johnson a few years ago. But also we have this idea that the powers of the executive, the powers of the Crown and the powers of the Crown’s ministers are held to legal account.

(23:10):

And it is the common law that has done that work. And from time to time, the monarchs, kings and queens who didn’t really like the idea that their counselors of state should be held to legal account would find ways of bypassing the common law by having different sorts of courts that would uphold different sorts of law. And that Star Chamber was one of those. So Star Chamber was a court that was used by the early Stuart Monarchs, that’s really James I and Charles I in the early seventeenth century to bypass the common law rules that you find in documents like Magna Carta that say that the Crown and its ministers are accountable to law. And there were certainly, I suppose you’d call them dissidents. Now, there were certainly dissidents in the early seventeenth century who were sentenced to be pilloried by star chamber because they were saying things that the Crown didn’t like, and the judges in the star Chamber would do the crown’s bidding for it in ways that the common law courts were beginning to learn not to do. So I think Star Chamber plays a role in the seventeenth century, but Star Chamber’s abolished by Act of Parliament in 1641, and doesn’t really feature in the story after the English Civil War.

James Patterson (24:26):

Yeah, I got things a little out of order, but I want to make sure we got the Star Chamber in there because I find that people say it, but they don’t know what it was. These things all have a very important role, and it kind of speaks to the salience of your book that even though we’re dealing with things that aren’t that long ago by British standards for American standards, of course this is all ancient history, and it’s important that we know what these words mean. So we can move things up a bit closer to the present. Seditious libel, as you said, is not a question of whether what you say about the government is bad, but true, but whether what you said about the government is just bad. So how is it that we move from a standard of saying anything about the government is bad to defenses by truth against government prosecution?

Adam Tomkins (25:18):

So we brought the story up to about, well, we were in the eighteenth century, so beginning of the eighteenth century, you find the first secular argument for free speech, and you also find that argument being made in a climate where people are beginning to distinguish genuinely seditious speech, which is designed to bring down the regime, bring down the entire constitution.

(25:42):

On the one hand, and having that distinguished from just oppositional speech. This is the beginning of the “rage of party” as one recently published book puts it, right? So we have Whigs in one corner and we have Tories in the other corner, and they disagree with each other, but they’re all loyal to the regime. I mean, some Tories actually weren’t loyal to the regime. Some were Jacobites and some wanted the Hanoverian succession to fail. But putting that to one side for the moment, what you had, certainly by the time Blackston is writing in the 1760s, certainly well before the American Revolution or the Declaration of Independence in 1776, it’s well established by then, very well established by then. That political disagreement is part of our political experience. It’s part of it is what we expect. And we very quickly forget by the middle or the middle third of the eighteenth century, we very quickly forget that we somehow used to manage without it.

(26:43):

And then what happens is that the government starts to relax much more than it ever has done before about what people say, and it starts to get much more agitated, or it starts to perhaps continue to be as agitated as it always has been about what people do. And sedition by the early nineteenth century is understood not in terms of speech anymore, but in terms of action. So seditious libel begins to wane very considerably in significance. And instead, things like unlawful assembly start to matter. So it’s when crowds gather physically in town squares or city squares and then start rioting that the government starts to act. And that’s in the very late eighteenth century, very early nineteenth century, we start having this kind of speech act distinction really beginning to crystallize. Now, we know of course that it’s more complicated than that because we know that there’s such a thing as expressive conduct.

(27:45):

We know that even if we aren’t familiar with all of the kind of contours of free speech law or public order law, we know that philosophically there are these things called speech acts, right? So we know that action and speech can’t always be cleanly or crisply distinguished from one another. And yet that is precisely the distinction that the idea of free speech rests on. I mean, imagine for a moment that the First Amendment said that Congress shall make no law abridging freedom of action. Now, there might be some radical libertarians or anarchists who would quite like that, but it would mean that Congress couldn’t make any law at all, right? Because all law abridges freedom of action, Congress wouldn’t be able to make any criminal law at all if the Constitution provided that Congress shall make no law abridging freedom of action. So we must, at some level, be able to distinguish speech from action.

(28:38):

And that distinction starts to work its way through the legal order on my side of the Atlantic in the early nineteenth century. And the government just stops worrying quite so much about what people say about it and starts worrying much, much more about the folk who throw bricks at soldiers or shoot soldiers or start burning down the houses of corn dealers because they think the price of bread is too high. And it’s that kind of public disorder that begins to be understood to be seditious or troubling or riot or whatever you want to call it.

James Patterson (29:13):

There was not that long ago, maybe like six or seven years ago, a short film that someone made where a man is sitting out in the middle of a heath or a bog with a television that mysteriously can turn on, and he’s like, “Finally, I can watch some television without the BBC taking notice.” And he turns it on and out from the water comes a bobby and says, “Oi, you got a license for that, bruv?” So this is one of my favorite things to show, and when I teach a class on medium politics, we have roaring back with the rise of broadcast, a return to licensing that seemed dead in the nineteenth century, as you said, but what is the new impetus for licensing broadcasts?

Adam Tomkins (30:00):

Yeah, absolutely. My book is divided into two parts. So the first part of the book tries to tell a story about where speech comes from, and then how the idea of a right positive to freedom of speech becomes embedded in our law on both sides of the Atlantic, both in the United States and here in the UK and elsewhere in Europe. And then the second part of the book tries to analyze three contemporary free speech problems through the prism of that historical story that I tell in part one. And so the three contemporary problems that I talk about in the second part of the book are media freedom and in particular broadcast licensing. And then I say a few things about hate speech, which we might want to get onto. And then I say a few things about regulating the internet, which also we might want to get onto, if you like James, later on in the conversation, the media freedom chapter is actually the one that interests me most, right.

(30:56):

Because the justification for licensing broadcast was, I think, absolutely compelling. When broadcast was invented, when broadcast was invented, the spectrum was limited, and there was a real problem with interference. I mean, I grew up in the 1970s in a very rural part of England with very bad radio signal. I remember what it was like listening to the radio with lots of interference on it. It was lots of static. You couldn’t hear anything, right? All you could hear was static or it is no good. Nobody can listen to two radio programs at the same time, right? Because you can’t focus on either of them. And so there needed to be some regulation of the spectrum to ensure that radio and then television worked at all. Because if everybody’s trying to broadcast on the same frequency, nobody can hear anything. It’s just static. It’s just interference. And so the purpose of bringing licensing back to regulate speech when broadcast was invented in the early to mid-twentieth century was to enable listeners to be able to listen to anything at all. So it facilitated speech. It didn’t try to limit speech. The purpose of the licensing was not to limit speech. The purpose of the licensing was to enable us to be able to hear anything at all on the airwaves, and at the same time to safeguard those bits of the airwaves, shortwave, and so on and so forth that the emergency services needed, which is also manifestly in the public interest, right? I mean, if you make a 911 call and you can’t get through or whatever it is, then that’s clearly contrary to the public interest,

James Patterson (32:32):

And there’s naval vessels that are trying to navigate, and if they end up with people on their broadband or bandwidth rather than they might crash, right? This is a very serious business.

Adam Tomkins (32:42):

Absolutely. So the purpose of the regulation was not to try and suppress or control or restrict speech at all. It was to enable us to be able to speak to each other over the airwaves at all. Now, that was the technology of the 1930s, if we’re talking about radio. 1950s, if we’re talking about television, that technology plainly doesn’t still exist. I mean, it exists, but it’s not how we use radio and television services anymore. First of all, we had cable or satellite, and then we have digital TV, and there is now no restriction on the number of all of these restrictions are historic. And in the United States, both the Federal Communications Commission and the Supreme Court realized by the 1980s, if not the very early 1990s, that the old justification for limiting and regulating broadcast had gone because the technology had changed. Unfortunately, on this side of the Atlantic, on my side of the Atlantic, we haven’t made that realization yet. We’re 40 years behind you. We’re 40 years behind where the United States is in terms of thinking about how we should understand the relationship between the public interest and the need for regulating speech and the technology that underpins broadcast. And that image that you have of the television emerging out of nowhere in the middle of some heath and then some Big Brother

(34:09):

agent saying, hang on a minute, you can’t watch that because you haven’t paid your license is all too true. That rings absolutely true to the kind of experience that we have. And the European Court of Human Rights has been lousy on this. The UK Supreme Court has been lousy on this. The UK Parliament has been lousy on this. We still have a huge, I mean, it is unbelievable, a huge body of legislative restriction that does now act as a censor on broadcasters. So there are all kinds of things, all kinds of rules that apply to broadcast speech in the Kingdom, but do not apply to the press, and also of course, don’t apply online. And so it’s very difficult to, this is a podcast. I mean, in the United Kingdom, this podcast will be available in the United Kingdom, and it’s not subject to broadcast regulations at all.

(35:02):

But if we were on a radio show rather than talking to each other over the Internet, then we would be subject to all kinds of restrictions on our speech. But it seems to me are now manifestly disproportionate and unarguable, and yet they haven’t been overturned or limited in any way. There is a glimmer of hope because there are now TV channels which seem to have quite deep pockets that are beginning to challenge some of these presumptions in the UK courts. There was one case actually decided after my book went to press, so it’s not in my book, but a book. It’s a case brought by a TV channel called GB News against the UK’s broadcasting regulator, the UK’s equivalent of the FCC, which is a regulator called Ofcom. And the case is interesting because it’s the first time in Ofcom’s history that a broadcasting decision that it has made has been overturned by a court.

(36:04):

So this is a rule that said that politicians may not present the news, right? Politicians may present current affairs programs, but there’s a rule in Ofcom’s code of conduct that says that politicians, elected politicians may not present news programs on the regulated broadcast media. GB News have news magazines, news magazine programs that are partly current affairs and partly news. And when there is breaking news, if you’re in a current affairs part of the show, rather than the presenter having to switch himself off and go to some other presenter who isn’t a politician, the presenter reads the breaking news. This happened. Ofcom fined GB News, a pretty substantial sum of money because there were several of these breaches. And GB News took the matter to the court, and the court held in favor of GB News’s arguments and against Ofcom’s arguments. And that’s the first time, as I say, that’s the first time that this kind of decision by Ofcom has been overturned by a court. But it’s also, even though I’m quite excited about it, it’s a very limited ruling because what the case challenges is not the rule itself, but the application of the rule in this particular case. So the rule is still there. It’s still the case that politicians are somehow unable, somehow unlawful. It’s unlawful because it violates principles of due impartiality.

(37:43):

It seems to me that these are rules which might have made sense in the day when there were only literally a handful of TV channels that you could choose from. But now there are, again, literally hundreds of TV channels that you can choose from. If I want to come home from work and I want to find out what a particular political party or a particular movement in politics is thinking about a story, then surely I ought to have the right as a viewer to choose a news channel that is not duly impartial because I’m not interested in finding out what the received wisdom is. I want to find out what this party thinks or that party thinks. I have a spectrum of newspapers to choose on. I can read communist newspapers, I could read far right newspapers, I could read anything in between, and that’s all unlicensed.

(38:30):

Why can’t I do the same as a television viewer? And actually, the person who made that argument most clearly is good old John Milton, because when you go back to “Areopagitica” and that great trapped against licensing, quite a lot of what he says in “Areopagitica” is an argument in favor of allowing readers to choose for themselves what to read. And I want to be able to choose for myself what to view on television. And if I want to watch on television something which I know is not impartial, but my point of viewing it is simply to find out what that group of people, what that political party is saying about a particular issue. I ought to have that right as a viewer. It seems to me, and we have been extraordinarily slow to see that, at least on this side of the Atlantic.

James Patterson (39:21):

So conservative or right-leaning coverage of Britain here in the United States has stressed the problem of hate speech as a kind of cooling, a chilling effect on coverage of certain issues. In the UK, you don’t have to talk about those issues, but in case that’s not something you want to drift into.

Adam Tomkins (39:41):

No, no, I’m happy to go there.

James Patterson (39:42):

Okay, then is there really a licensed media fear of covering specific issues because they’re afraid of running afoul of hate speech? Or does that cover for some kind cowardice in the face of what their coverage might… Oh, go for it.

Adam Tomkins (40:01):

In my mind, both. So I’ve just talked about the power of the administrative state. I’ve just talked about the regulatory reach of agencies. We call it Ofcom, you call it the FCC. It demands to the same thing, government agencies that are paid by the taxpayer to monitor what is broadcast. That’s the power of the regulatory state. And my view, is that that’s the real threat to free speech right now in Britain. But it’s not the threat to free speech in Britain right now that has caught the attention of some in the American media. And indeed, it’s not the threat to free speech that’s caught the attention of the Vice President. JD Vance has said quite a few things about this during the course of the year, and their focus tends to be much more on criminal law than on administrative law. And I can understand why, because criminal cases get people’s juices flowing and much more interesting to write about a kind of prominent hate speech case than the mundane quotidian administrative overreach of the regulatory state.

(41:09):

But actually, it’s that mundane quotidian overreach of the regulatory state that really matters, not the occasional criminal justice problem. But let me talk about the criminal stuff, right? Because in addition to the regulatory overreach that I’ve just been talking about, we also have a bewildering, dazzling array of criminal offenses, a number of which capture different sorts of speech. So it is, for example, an offense in the United Kingdom to send by email or any other form of electronic communications, a message which is grossly offensive. It is, for example, in the United Kingdom, an offense to stir up racial hatred by using an epithet which is perceived to be insulting. So there are some cases in the UK even now where you can be criminalized for saying something or tweeting something or writing something, not because you’ve said something which is threatening, not even because said something which is abusive.

(42:12):

But because you said something which somebody thinks is either grossly offensive or insulting. And in my view, and the argument I make in the book is that that is drawing the line of criminal liability in the wrong place. A lot of Americans will disagree with what I’m about to say, but my view is that it’s perfectly appropriate to criminalize threatening words. I can’t use my fists in a threatening way. So why should I be able to use my words in a threatening way? I have an argument in the book that defends hate crime when hate crime is understood to be a threat or even an abusive communication. But I absolutely draw the line at insulting or offensive speech, the answer, if you’re offended by what I have to say, the answer is not to silence me or to censor me or to cancel me, or to write to my employer saying that I have brought my place of employment into disrepute or whatever it might be.

(43:09):

The answer to my words, if my words are offending you or upsetting you or insulting you, is to use your own words to explain why I am being offensive and to urge that I should stop being offensive. You don’t meet and capture and deal with and defeat the problem of bigotry or prejudice in society by silencing it. You defeat it by exposing it, and you can only expose it if you’re prepared to engage with it and call it out and defeat it with words of your own. So the argument, this is the classic American position, right? That the argument against offensive speech is not to cancel the speaker, but more speech, right? Your speech showing me or showing everybody, showing my audience why I’m wrong to say what I’ve said. And I absolutely adhere to that view, and I think that the Vice President is right to draw attention to this issue. I think the American media are right to draw attention to the fact that in the United Kingdom, there are far too many instances of the criminal justice system being used to tackle speech, which somebody else is upset about, which somebody else is offended by or somebody else is finding,

(44:27):

claims to be insulting in some way. Now, the picture is not uniformly bleak. There is all sorts of pushback going on in all sorts of places in the media, in public discourse and in the courts. There was a recent case, for example, which gave a lot of us a lot of hope. A man had been convicted of a relatively minor public order offense for burning a copy of the Quran outside the Turkish embassy in London or Turkish consulate in London. And that conviction was overturned on quite strong terms on appeal. And the court gave its reasons and the reasons were very robustly articulated in the context of free speech. And it doesn’t follow from that case that we all have the right to burn a copy of the Quran wherever we see fit. If we were to do that in a way which is deliberately provocative, it could very well be fighting words.

(45:22):

It could very well be expressive conduct that would trigger all kinds of public order liability. But it does follow from that important breakthrough judgment that it will not always be a criminal offense to burn a copy of the Quran, even if there will always be Muslims who find that deeply offensive. And that it seems to me is drawing the line in the right place. So actually, I’m always being accused, James, of being too optimistic, but I am actually quite optimistic that there’s an increasing number of voices in UK society and UK politics, and also now an increasing number of cases being decided by the UK courts in which freedom of speech is being much more robustly defended again than it has been perhaps for some years. And if the Vice President’s contributions to that have been part of it and have helped, then I welcome them.

James Patterson (46:23):

On page 234, you open a section that says, “When the Online Safety Act was passed in 2023, after unusually long and protracted parliamentary passage, the UK government claimed legislation would make the UK the safest place in the world to be online.” What’s the score on that one? Professor Tomkins, are you safe?

Adam Tomkins (46:48):

The Online Safety Act is a nightmare.

James Patterson (46:52):

Sorry to bring you down from your optimism by bringing up your own laws…

Adam Tomkins (46:55):

Words, but this is going to be the cutting edge of free speech going forward. So we need to talk about it, right? Because the students I teach, I’m sure it’s the same for the students that you teach in Tennessee. James, the students I teach don’t obtain their news from any source other than online. They don’t read newspapers, they certainly don’t read books. They don’t read newspapers. They barely watch television. They sometimes do listen to podcasts, but they overwhelmingly, overwhelmingly receive all of their news and current affairs information online. And so we need to think really, really hard about what that means in terms of freedom of speech. And I think that there are, so if you take a Millian approach to this, right? J. S. Mill who wrote this wonderful essay “On Liberty” in the middle of the nineteenth century said that your speech and mind should not be curtailed at all unless it causes demonstrable harm to somebody else.

(47:59):

So if we think about a harm based approach to speech, and this is kind of classic classical liberalism, right? If we think about a harm based approach to speech, then I would go back to my example about threats. It can cause harm to threaten somebody with words in the same way that it can cause harm. To use Oliver Wendell Holmes’s world famous example to falsely to shout fire in a crowded theater, the reason why those sorts of words are not protected by even the world’s amplest protection of free speech is because they cause demonstrable harm to others. So if we use that as our way into this, as our way into thinking about this, then it is, I’m afraid, the case that online speech can be more harmful than offline speech. There is more anonymity online than there is offline. People can hide behind that anonymity in all kinds of ways that are dangerous for people. People also feel that they are able to say things, particularly on certain social media platforms that they wouldn’t say to each other face-to face perhaps because there aren’t any faces online. It’s very difficult. I have teenage kids. It’s very difficult to know what they’re looking at online. It’s very difficult to police that. I know that there are apps available. I know that I can restrict their, I know all of that, but I’m also kind of a liberal, so I don’t really enjoy doing those things.

James Patterson (49:24):

Also, a lot of work to conduct surveillance on teenagers

Adam Tomkins (49:27):

All day. Absolutely. And they’re always going to be more tech savvy than I am, and they’re always going to be quicker to work out their way around it than I can. So it’s kind of futile, right? Again, that’s something that Milton said about censorship. It’s like the farmer who puts a fence around his field to keep the crows out. You’re not realizing that the crows can just fly in. So it’s absurd. It’s futile. So what I’m saying is that I think there is a very good argument for thinking about online speech differently from the way in which we think about offline speech, because I think that the harms that speech can cause online might be different from, and might even be greater than the harms that can be caused offline. But… And you knew there was a “but” coming…

Adam Tomkins (50:10):

We also need to think about freedom of speech online and getting that line, getting that line right between what is permitted and or licensed or criminalized, and what is not is going to be, I think, a work in progress. I’m going to say two things, which I think are unfortunate about the Online Safety Act. First is just complexity. So the legislation itself is fiendishly difficult to understand. I’ve tried to teach it to very advanced law students a couple of times now, and more or less completely failed. It’s very difficult to understand. But that is a problem, which is massively compounded. When you look at the regulatory verbiage that is spewing from Ofcom. We’ve talked about Ofcom already, and it’s the same regulator who are empowered under the Online Safety Act. Within the first year of the Online Safety Act coming into force, Ofcom had published more than 2000 pages of regulatory guidance.

(51:14):

Now, whenever you’ve got 2000 pages of regulatory guidance, you haven’t got much freedom. So this is all stuff that is designed to restrict freedom of speech, and it’s all happening in real time. It’s happening right now. It’s happening without any real democratic accountability because Ofcom are a government agency. The courts, the cases have not yet really started to filter up into the courts. There are very few cases on the Online, so there are one or two, but there’s very few cases on the Online Safety Act. And of course, parliament is not interested because Parliament’s done its work and has enacted the, except for the fact that Parliament is interested insofar as it thinks that the Online Safety Act doesn’t go far enough. So the Online Safety Act is designed to focus on specific harms, but it is not designed to focus on the alleged harm of disinformation.

(52:07):

And there was a parliamentary committee that reported very recently, just the last few months in the House of Commons in Westminster that was focused on the problem of the perceived problem of disinformation online. And it recommended as an all party committee that unanimously recommended that the Online Safety Act already needs to be amended to increase its reach into online speech to begin to capture this problem or a perceived problem of disinformation. So I’m afraid that on this score, notwithstanding my optimism five minutes ago, I’m much less optimistic that the United Kingdom is moving in the right direction or is indeed even facing the right direction. It seems to me at the moment, we’re terrified of what’s happening online. We don’t understand what’s happening online. We dislike what we think we see online, and we are increasingly reaching. The impulse is there in our politics. I’m afraid that lawmakers are reaching for the regulatory tools that are familiar to them from the broadcasting world, copying and pasting, applying them to the online world. And even if that one day makes the Internet a safer place, it’s going to make the Internet a lot less free. And that is a conversation that we need to be having upfront and in public and not under the cover of a thousand pages of regulatory garbage from Ofcom. It’s really, really troubling.

James Patterson (53:38):

Well, I can’t do better than that to close us out, Professor Tomkins. Thank you so much for appearing on the Law & Liberty Podcast.

Adam Tomkins:

You’re welcome.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.