by Maria C Collins

Created on: November 27, 2010   Last Updated: December 21, 2010

Many people believe their right to freedom of speech gives them the right to say exactly what they think, in any circumstance. The right to Freedom of speech is legally limited. Freedom of thought is unlimited, providing your thoughts do not lead to your committing a crime.

Freedom of speech allows you to express an opinion, or spread information, but it is limited by both the criminal law and by civil law. Since the incorporation of the European Convention on Human rights into English law, the freedom of expression clauses assure a legal right to freedom of speech. However, the convention allows National governments to limit that right in particular circumstances, such as where National security or other situations may necessitate the limiting of the right.

Some commentators state that there was not a legal guarantee to freedom of speech in English law, before the incorporation of the Convention, but they are mistaken, and have misunderstood the English constitution. The right to free speech, whilst not enshrined in one document like the United States constitution, is traceable through case law and statutes, where the presumption of the right is always allowed. English law works from a different premise to other jurisdictions where unless a law allows you to do something you may not do it, in England you can do anything you like providing that there is not a law forbidding that action.

Under English law, some expressions of opinion are crimes. It is not a crime to hold those opinions, provided you do not tell anyone else about them. Leaflets that contain racial bigotry that is likely to incite hatred come under the laws that forbid the incitement of such hatred. Incitement to religious hatred is also a crime.

If you send pornographic material, or obscene photographs, in the Royal Mail, you will fall foul of the law that expressly forbids this. You may not show such things to a minor, nor leave them around for a minor to see. You may not offend others, the usual standard applied is that of the ubiquitous reasonable man. English law seeks to balance rights and, therefore, your right to free speech ends where you impinge on another’s legal rights. So possessing literature covered by the Terrorism Act 2000, or the Obscene Publications Act 1959 is a crime.

The right to speak freely is further limited, in English law, by the civil law. Defamation laws are quite strict in England and Wales but there are defences against defamation charges, such as public interest, fair comment or truth. Thus any Englishman may call the Prime Minister “an idiot”, if he believes him to be so, even in print, without any legal consequences. However, were he to say, or print an article saying, untruthfully, that someone had done something very disreputable that would be likely to besmirch his reputation and lower other people’s opinion of him and this lie is circulated widely, he could be sued for slander or libel respectively.  

We censor our speech, every day, to avoid hurting, angering, offending or annoying others. There is much rubbish spouted about Freedom of Speech, it is the right to express an opinion, it is not the right to incite hatred or crime, nor the right to put others in fear of violence. If we are not to infringe other people’s civil rights, our right to Freedom of Speech must be limited to ensure the smooth running of society.

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