Catherine Blaiklock’s excellent article on free speech got me thinking, and remembering early FSB articles on Common Law, I started looking into the legalities of the current attack on free speech. Now I’m no lawyer, but it seems to me that the government is now a tyrant and has no legitimacy, and is acting unconstitutionally and therefore, in the real meaning of the term, acting illegally.
Free speech is a pillar of democracy and a bulwark against tyranny and in England it is embedded in the ancient legal traditions of Magna Carta (1215), the Bill of Rights (1688) and English Common Law. These foundational instruments articulate and defend the rights of the individual against arbitrary power and the concept that liberty and liberty of expression are not gifts of the state but a birthright to be protected against state overreach.
Modern restrictions on free speech through hate crime laws and the Online Safety Act however, represent a radical departure from centuries of legal tradition, criminalising opinion, imposing prior restraint on lawful communication and handing excessive power to the state. Such measures are not only morally and politically indefensible but also illegal under the constitutional heritage of England that government must be bound by the principles that gave rise to constitutional liberty.
The Magna Carta of 1215 was designed to restrain the power of the Monarch and introduced enduring principles into the English legal consciousness. Clause 39 declares: "No free man shall be seized or imprisoned or stripped of his rights or possessions...except by the lawful judgment of his equals or by the law of the land."
This provision affirms the principle of due process and insists on lawful adjudication before any penalty may be imposed. Importantly, "law of the land" was interpreted over time to mean Common Law, not arbitrary or politically motivated legislation.
Criminalising speech that does not incite violence or crime violates the principle that no one should be punished except according to law, properly understood as an expression of natural justice and reason, not political fashion. When speech is punished without clear and universally accepted standards the state acts outside the "law of the land" in the traditional sense.
Magna Carta affirms that rights are not contingent upon state approval and supports the view that free speech precedes state regulation, and that government’s role is to protect, not license, expression.
The Bill of Rights 1688 that came out of the English Civil War and Glorious Revolution, further restricted the power of a monarch who, like our current Globalist tyranny, thought he had a divine right to rule, explicitly limiting the powers of both monarchy and Parliament. It was intended to restore ancient rights and liberties of the English people rooted in Magna Carta and Common Law traditions that the power of suspending of laws, or the execution of laws, by regal authority without consent of Parliament, is illegal; that freedom of speech and debates in Parliament ought not to be impeached or questioned in any court out of Parliament. This latter specifically protects Parliamentary speech, but its spirit informs the broader Common Law tradition of freedom of expression, and it reinforces a vision of liberty grounded in limited government.
When modern governments pass vague and ideologically motivated laws criminalising speech they deem hateful they are reviving the same discretionary and arbitrary powers that the Bill of Rights sought to abolish.
The 1688 Bill of Rights remains part of UK constitutional law. Parliament is still bound by its principles unless it openly repeals or supersedes them - which in regard to regard to free expression it has not dared to.
The strongest argument against state censorship comes from English Common Law, that accumulation of judicial decisions over centuries that form the real substance of English constitutional tradition.
Common Law holds that speech is a natural liberty, limited only by clearly defined harms such as incitement to violence, defamation, or conspiracy to commit crime. In the 18th century, William Blackstone, the preeminent Common Law jurist, wrote in his Commentaries on the Laws of England: "The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."
This doctrine, known as the prohibition on prior restraint, remains fundamental. It means government may prosecute truly harmful speech after the fact, but it cannot pre-emptively control what may be mere subjective judgments of offensiveness.
Modern hate speech laws and the Online Safety Act directly violate this principle by causing people to self-censor, empowering unaccountable regulators (Ofcom) to impose rules on and create legal obligations for digital platforms to monitor and censor users under threat of criminal liability, all of which violate the prohibition on prior restraint. These ‘laws’ criminalise opinion the state disapproves of, not harmful conduct.
Magna Carta and the Bill of Rights rest on the concept of pre-political rights: the idea that individuals possess liberty by virtue of being human, not because the state grants it. This view underpins the Common Law tradition and sharply contrasts with the modern approach, derived from the European Napoleonic tradition of treating rights as contingent upon legislative enactment.
This shift is not merely a legal error but a constitutional betrayal of the common-law tradition that holds that governments exist to protect liberty, not to redefine it.
When the state uses the tools of criminal law and regulatory power to enforce an ideological conception, particularly through vague, subjective categories like hate, it does more than infringe on free speech: it undermines the entire constitutional settlement that protects individuals from arbitrary power.
The Online Safety Act of 2023 imposes a duty of care” on tech platforms to prevent users from being exposed to “legal but harmful” content, including speech that is not illegal but is judged to be psychologically damaging or socially dangerous. This is unconstitutional under historical standards as it introduces prior restraint, uses non-judicial authorities to judge the acceptability of speech, introduces vague and subjective criteria for censorship and chills debate about controversial political, religious, or cultural topics.
Scotland has gone even further. The Hate Crime (Scotland) Act 2021 criminalise expressions of belief, including statements made in private homes, inverting the principle of free speech by assuming guilt in speech that causes offense, regardless of intent, context, or truth.
Under the standards of Magna Carta, the Bill of Rights, and Common Law, this constitutes an unlawful exercise of power by criminalising free moral agency, imposing punishment without due process and expanding state authority into private conscience.
Some argue that because Parliament has passed these laws they are legitimate. But under the traditional English constitutional structure, Parliament is not omnipotent but constrained, especially morally and philosophically, by constitutional principles that cannot be overruled without destroying the very basis of parliamentary authority.
Lord Justice Laws in Thoburn v Sunderland City Council (2002) described Magna Carta and the Bill of Rights, as “constitutional statutes” which may not be impliedly repealed as they form the deeper legal infrastructure of liberty. The government cannot cite democratic legitimacy to override individual rights that precede it, as this would revert to legal absolutism, the very thing the English constitutional settlement was meant to prevent.
The current regime of speech restrictions in the United Kingdom as embodied in hate crime legislation and the Online Safety Act therefore violates the foundational principles of British constitutional law and is a direct repudiation of England’s legal heritage. The solution is for us, the people, to reclaim the principles of liberty, due process, and limited government that defined English law for over 800 years and made Britain a beacon of freedom. Pray God it doesn’t take another Civil War to achieve it.
President Trump has despatched a team to investigate the state of free speech in Britain. I hope they read this, ignore Establishment politicians and bureaucrats, and speak instead to the many fighting for free speech against a government, elected by only 20% of the electorate, but intent on imposing a very nasty tyranny.
I’ll be happy to point them in the right direction; freespeechbacklash@gmail.com.
Tom Armstrong.