Why I am not as Keen as Many about Free Speech

The following is from Uncommon Law, by A. P. Herbert.

Engheim, Muckovitch, Kettelburg, Weinbaum, and Oski v. R

    Free Speech – Why?

This was a petition to the Crown by certain British subjects, made under the Bill of Rights, and referred by the Crown to the Privy Council.

The Lord Chancellor: This is a petition to the Crown by certain members of a political party who were convicted of holding a public meeting in Trafalgar Square contrary to the orders of the Home Secretary and police. The petitioners are keenly interested in the “Hands Off Russia” movement, and although there is no evidence that any person in this country proposes to lay hands on Russia, they have been in the habit for some weeks past of gathering at Lord Nelson’s monument on Sunday afternoons and imploring the few citizens present to keep their hands off that country. At these meetings banners are held aloft which invite compassion for persons in a state of bondage, and songs are sung expressive of a determination to improve the material condition of the human race. These at first sight unobjectionable aims have unfortunately inflamed the passions of another body of citizens, who interpret them as an unwarrantable interference with the affairs of their own country, and have therefore banded themselves into a rival movement whose battle-cry is “Hands Off England.” This party, though their banners and their songs are different, express the same general ideals as the petitioners, namely, the maintenance of liberty and the material advancement of the poor and needy. Their principal song has a refrain to the effect that their countrymen will never consent to a condition of slavery; while the songs of the petitioners assert that many of their countrymen are in that condition already, and resent it. So that at first sight it might be thought that these two bodies, having so much in common, might appropriately and peacefully meet together under the effigy of that hero who did so much to ward off from these shores the hateful spectres of tyranny and oppression. When, however, it was announced that the two movements did in fact propose to hold meetings at the same time and place, the police were so apprehensive of a disturbance of the peace that both gatherings were by order prohibited. For it appears that the spectacle of the national flag of these islands is infuriating to the petitioners, while the simple scarlet banner of the petitioners is equally a cause of offence to the other movement, although that same colour is the distinctive ornament of many institutions which they revere, such as His Majesty’s Post Office and His Majesty’s Army.

These, however, are political matters which fortunately is is not necessary for this Court to attempt to understand, though we may observe that an age in which it is possible to fly across the Atlantic in thirty hours might be expected to hit upon some more scientific method of deciding by what persons a given country shall be governed. The “Hands Off England” movement obeyed the order of the Home Secretary, but the petitioners did not; their meeting was begun, and was dispersed by the police. They were prosecuted and fined, and they now ask for a gracious declaration from the Throne that these proceedings were in violation of the liberties of the subject as secured by the Bill of Rights, and in particular of the rights, or alleged rights, of Public Meeting and Free Speech.

Now, I have had occasion to refer before to the curious delusion that the British subject has a number of rights and liberties which entitle him to behave as he likes so long as he does no specific injury or harm. There are few, if any, such rights, and in a public street there are none; for there is no conduct in a public thoroughfare which cannot easily be brought into some unlawful category, however vague. If the subject remains motionless he is loitering or causing an obstruction; if he moves rapidly he is doing something which is likely to cause a crowd or a breach of the peace; if his glance is affectionate he is annoying, if it is hard he may be threatening, and in both cases he is insulting; if he keeps himself to himself he is a suspicious character, and if he goes about with two others or more he may be part of (a) a conspiracy or (b) an obstruction or (c) an unlawful assembly; if he begs without singing he is a vagrant, and if he sings without begging he is a nuisance. But nothing is more obnoxious to the law of the street than a crowd, for whatever purpose collected, which is shown by the fact that a crowd in law consists of three persons or more; and if those three persons or more have an unlawful purpose, such as the discussion of untrue and defamatory gossip, they are an unlawful assembly; while if their proceedings are calculated to arouse fears or jealousies among the subjects of the realm they are a riot. It will easily be seen, therefore, that a political meeting in a public place must almost always be illegal, and there is certainly no right of public meeting such as is postulated by the petitioners. It was held so long ago as 1887 by Mr. Justice Charles that the only right of the subject in a public street is to pass at an even pace from one end of it to another, breathing unobtrusively through the nose and attracting no attention.

There are, in fact, few things, and those rapidly diminishing, which it is lawful to do in a public place, or anywhere else. But if he is not allowed to do what he likes, how much less likely is it that the subject will be permitted to say what he likes! For it is generally agreed that speech is by many degrees inferior to action, and therefore, we should suppose, must be more rigidly discouraged. Our language is full of sayings to that effect. “Speech is silver,” we say, and “Silence is golden”; “Deeds – not words”; “Least said – soonest mended”; “Keep well thy tongue and keep thy friend” (Chaucer); “For words divide and rend,” said Swinburne, “but silence is most noble till the end”; “‘Say well’ is good, but ‘Do well’ is better”; and so on. The strong, silent man is the admiration of us all, and not because of his strength but because of his silence. The talker is universally despised, and even in Parliament, which was designed for talking, those men are commonly most respected who talk the least. There never can have been a nation which had so wholesome a contempt for the arts of speech; and it is curious to find so deeply rooted in the same nation this theoretical idea of free and unfettered utterance, coupled with a vague belief that this ideal is somewhere embodied in the laws of our country.

No charge was made in this case of seditious, blasphemous or defamatory language, and in the absence of those the petitioners claim some divine inherent right to pour forth unchecked in speech the swollen contents of their minds. A Briton, they would say, is entitled to speak as freely as he breathes. I can find no authority or precedent for this opinion. There is no reference to Free Speech in Magna Carta or the Bill of Rights. Our ancestors knew better. As a juridical notion is has no more existence than Free Love, and, in my opinion, it is as undesirable. The less the subject loves the better; and the less everybody says the better. Nothing is more difficult to do than to make a verbal observation which will give no offence and bring about more good than harm; and many great men die in old age without ever having done it. The strange thing is that those who demand the freest exercise of this difficult art are those who have the smallest experience and qualifications for it. It may well be argued that if all public men could be persuaded to remain silent for six months the nation would enter upon an era of prosperity such as it would be difficult even for their subsequent utterances to damage. Every public speaker is a public peril, no matter what his opinions. And so far from believing in an indiscriminate liberty of expression, I think myself that public speech should be classed among those dangerous instruments, such as motor-cars and fire-arms, which no man may employ without a special licence from the State. These licences would be renewable at six-monthly periods, and would be endorsed with the particulars of indiscretions or excesses; while “speaking to the public danger” would in time be regarded with as much disgust as inconsiderate or reckless driving.

What is in my mind is well illustrated by this case; for the evidence is that the one manifest result of the “Hands Off Russia” movement has been to implant in many minds a new and unreasoning antipathy to Russia; while the cry of “Hands Off England” has aroused in others a strong desire to do some injury to their native land. We find therefore that there is no right of Free Speech recognized by the Constitution; and a good thing too.

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One response to this post.

  1. […] have previously posted my opposition to free speech. On another occasion, the great A.P. Herbert had one of his judges […]

    Reply

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