Does freedom of speech mean freedom?: A comparison between regulation of speech between the United States and the United Kingdom

Daniella Regencia, Executive Editor of the Michigan Journal of International Law

While most followers of pop culture are currently waiting with bated breath for the White House’s response to the deport Justin Bieber petition,[1] another young pop star is bringing to the spotlight questions of foundational legal principles. Liam Payne, of the boy band One Direction, came under fire for sending a Twitter message to Duck Dynasty patriarch Willie Robertson in support of his “family values”[2] and for later posting a Twitter rant where he espoused the ideals of free speech.[3] Free speech has long been a hallmark of the American legal and cultural tradition, but Payne hails from the United Kingdom. The UK, while frequently America’s staunch supporter, diverges greatly from our tradition in this area of law. Freedom of speech in the UK is governed by common law and parliamentary acts.[4] The foundational statute for freedom of expression is the Human Rights Act of 1998.[5] This act incorporated the European Convention of Human Rights into the UK’s domestic law.[6] Since that time, a number of cases have been decided interpreting this Act. One of the earliest cases to balance a newspaper’s right to freedom of expression with an individual’s right to privacy was Campbell v. Mirror Group Newspapers Ltd.[7] In this case, supermodel Naomi Campbell brought suit against a newspaper for publishing photos of her at a Narcotics Anonymous meeting and printing that she had used drugs, despite Campbell’s statements to the contrary. The Court held that Ms. Campbell’s interest in her privacy was greater than the paper’s interest in its expression, and awarded Ms. Campbell damages.. Parliament also passed a law limiting speech through electronic communication. The Communications Act of 2003 provides for fines and imprisonment based on messages sent through a public electronic communications network that are “grossly offensive or of an indecent, obscene or menacing manner.”[8] In 2012, a man was jailed under this Act for comments he posted on Facebook regarding a young girl who had been abducted.[9] It was said that the initial arrest was for his own safety,[10] but his comments,[11] while truly distasteful, are not comments that would give rise to a criminal suit in the United States. The only type of speech in the U.S. that might give rise to a prosecution is hate speech. In the U.S., the state cannot regulate the content of the speech. [12] These restrictions give rise to super-injunctions, a controversial form of relief in U.K. courts. Super-injunctions began as court orders that prevent media outlets from reporting on certain sensitive topics and also prohibit the media outlets in question from reporting the existence of such an injunction.[13] In one highly-publicized instance of a super-injunction being used  there was an oil company that wanted reports about a spill kept out of the media. The company received a super-injunction protecting these reports and ensuring related hearings were kept out of the media as well, including a parliamentary hearing.[14] The super-injunction was expanded under the veil of privacy through court cases so that other public figures, such as sports players and celebrities could avail themselves of their quieting effect on the media.[15] The major issue with this type of relief, especially when it relates Parliamentary investigations, is that it inhibits government transparency. This was a major concern debated in Parliament after the super-injunction in the oil company instance. Further, super-injunctions seem to contradict the Parliament Papers Act of 1840, which grants provides for the availability of Parliamentary reports in various proceedings:

It shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner so ever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament.[16]

These restrictions seem jarring to an American legal tradition in which freedom of speech and freedom of the press are closely intertwined. In the U.K., the common law and statutes work to limit both of these things, many times having one play off of the other. Observing the conduct of one of America’s closest allies with respect to a right Americans have ingrained in them seems incongruous, but it also calls into question why freedom of speech seems so fundamental to the American way. It requires a balancing of what is more important: society’s interest in protecting its most vulnerable from offensive and hateful speech, or open and free discourse. The concepts of freedom of speech and freedom of the press are meant to allow for a more informed electorate and greater accountability in government, but both countries are impeding this in some way – either through judge-made rules and parliamentary acts or through secret government programs[17]. Mr. Payne’s tweets were not meant to spark controversy or discussion in the mainstream media, but it did lead to an open discourse, possibly among segments of the society who generally do not consider such weighty issues.