Boris Johnson on Trial
The implications for free speech. The public must understand what that means
In the week Boris Johnson was summoned to face charges of misconduct in public office brought by the private prosecution led by Marcus Ball, Johnson’s Conservative party colleagues took to twitter and traditional media to express their support for the leadership candidate, not by providing a character reference, which perhaps says a lot, but by claiming a right to free speech while simultaneously claiming the case was a cynical attempt to stop Brexit.
Leaving aside that prosecuting Boris is completely independent of the Brexit debate, albeit usefully conflated by hard Brexit advocates seeking to hijack their colleague’s plight for political gain in the wake of disastrous European election results for the two main parties, the question of free speech appeared in different forms in each conversation in the the twittersphere. Time and time again, simply as a strawman argument to deflect from the case of misconduct in public office, for which many of his side of the conservatives could suffer a similar fate. The offence is not just about lying.
Interestingly, the free speech argument seems to live long in populace psyche. Johnson’s colleagues thinks it trumps (pun intended) every other position in law. Is this just them? Is there something wrong with our society’s understanding of free speech? What is free speech in the first place?
The contemporary definition of Free Speech is an assumed right to say anything one wants. Regularly deployed as a defence against criticism and legal charge (spot the irony), especially for offence or illegality, free speech advocates cite it as an inalienable human right. Something that can’t be taken away from an individual, no matter what they do. Born with a person, it dies with a person.
The problem is, it doesn’t exist!
The history of current free speech legislation goes back to 1948. The Universal Declaration of Human Rights. Signed after the atrocities of World War 2, this document, subsumed into the International Covenant on Civil and Political Rights, defines freedom of religion and of the freedom of expression, as well as opinion, but does not explicitly mention speech anywhere in the original enactment.
In itself, this does not mean there is no right to free speech. After all, oral expression is protected under article 19, clause 2, of the ICCHR, right?
Sadly for them, the caveat in clause 3 as well as article 20, demonstrate that right is not inalienable. It can be revoked to maintain law, especially where it is clear Racial or Religious Hatred, or is incitement to cause harm. Period!
This is in keeping with article 30 of the original UDHR. The salvatory clause of this and every other derivative since, explicitly makes clear only a fettered right to free expression.
Free expression is broadly defined. Much broader than anything recognisable as free speech (dance anyone?) which doesn’t exist and in any event, is not inalienable, by the very fact it is fettered and can be revoked. It is rightly subservient to every other human right and is that way in both the European Convention on Human Rights and the UK Human Rights Act, which similarly make absolutely no mention of speech at all.
This creates a primacy in law. Some laws take precedence over others. With Human Rights law coming above everything else. If something fails to protect a human right, then whatever the merits of the case, it cannot overturn that failure. Like a right to a fair trial for the perpetrator cannot be breached just because somebody mugged someone in the street at random. It’s an infuriating position, but that’s the law and it developed to rightly protect human rights and the rule of law, first and respect for the rule of law, foremost. Including the right to a fair trial before an independent court. If the rule of law becomes subservient to anything else, democracy itself, falls.
This also means statements from Conservative colleagues like Jacob Reese Mogg, citing political freedom, are categorically false. Since that puts the government above the law, which itself, is a breach of the principles of equality before the law (politicians are unequal).
This basically means that free speech is not an inalienable right at all! A true right to free speech doesn’t exist!
Yet, cases have been brought to defend free speech, right?
Unfortunately not. Those cases were brought on freedom of expression, not speech. Furthermore, that precedence relationship means first having to examine whether what was said, isn’t itself a violation of another human right, then decide whether the speech was an expression (eg if it’s opinion or fact), before then finally arguing about whether or not there was a violation of free expression. In essence, it’s almost third in importance. This naturally protracts cases around it.
For example, propaganda is illegal. So opinion pieces in papers are deliberately labelled as opinions to absolve the paper of wrongdoing. Ensuring a right to the expression of an opinion by the author, is not seen as propaganda by readers of the paper. At least, that’s the intent.
I was interested in what people’s knowledge of this was. So I asked twitter, deliberately vaguely. The results actually surprised me! 82% of people think free speech is a human right.
It’s a small sample. So not reading too much into it, but this is probably one of the reasons the free speech argument is so persuasive. Few people understand that free speech isn’t an inalienable right! Indeed, there is no explicit right to free speech at all under UK or European law.
That last line is an important caveat. There are places, namely the USA, where free speech is written in to the first amendment of the constitution. That law sits above Congress. Limiting Congress’ abiłity to make laws that prohibit it. But this isn’t the same everywhere and UK sovereignty means US federal law doesn’t apply here. Yet, in the mind of the common people, our common misunderstanding of free speech appears to be yet another American import. One that we should understand, is not fit for purpose.