Allowing Free Speech and Prohibiting Persecution—A Contemporary Sophie's Choice
| Author | Christopher J. Newman |
| DOI | 10.1350/jcla.70.4.329 |
| Published date | 01 August 2006 |
| Date | 01 August 2006 |
| Subject Matter | Article |
Allowing Free Speech and
Prohibiting Persecution—A
Contemporary Sophie’s Choice
Christopher J. Newman*
Abstract This article considers the approach of three distinct common law
jurisdictions to the problems faced by courts when an individual’s right to
freedom of expression is invoked as a defence to a low-level public order
offence. The contrasting approach of courts in England, Australia and the
USA will be examined in order to ascertain whether there is a simple
balancing act to be made on a case-by-case basis or whether an optimal
model of public order legislation can be established to provide some
certainty when rights to freedom of expression collide with the wider
rights of the community.
It is not until the last few pages of the book Sophie’s Choice1that author
William Styron chooses to reveal the horrific dilemma faced by the
leading protagonist. As students of literature will be aware, Sophie was
a Polish Jew who was forced by a Nazi officer to choose which one of her
children would stay with her and which one would die. Although
lacking the personal, tragic impact of Sophie’s choice, the courts of
Australia, the USA and the UK have recently been forced to endure
similarly difficult choices. The cases concerned individuals engaged in a
public demonstration being arrested for violating a criminal statute
designed to prevent low-level public order offences. In each case, the
defendants were doing nothing more than propagating their opinions.
In each case, the defendant relied on freedom of expression as his
defence. The observance of free expression carries with it an inherent
tension as against the protection of minority interests. The intellectual
history of mankind provides copious amounts of literature to support
the assertion that freedom of expression is both necessary and reflective
of the state of health of a society.2Equally, the existence of those in
society who are the subject of vituperative discourse to the point of
persecution would also be seen as unacceptable in a civilised democracy.
Such a balancing act is one that has ramifications for criminal lawyers,
their clients, civil libertarians and those from minority groups.
* Lecturer in Law at the University of Sunderland; e-mail
chris.newman@sunderland.ac.uk. I would like to thank Professor Alan Reed for his
invaluable advice and wise counsel during the writing of this article. Any errors are
my own.
1 W. Styron, Sophie’s Choice (Random House: New York, 1979).
2 For the various discussions see, for example, J. S. Mill, On Liberty (London, 1859).
Modern theories can be found in A. Dershowitz, Rights from Wrong (Basic Books:
New York 2004) 175–81, T. Campbell and A. Tomkins (eds), Sceptical Essays on
Human Rights (Oxford University Press: Oxford, 2003). In terms of a doctrinal view
of public order issues in the UK, see e.g. R. Card, Public Order Law (Jordan: Bristol,
2000) and although slightly older, A. T. H. Smith, Offences Against Public Order
(Sweet & Maxwell: London, 1987) gives an overview of the situation at the
inception of the Public Order Act 1986.
329
In terms of a constitutional position regarding free speech, Australia
has no explicit right to freedom of speech within its main instrument of
government. The UK has recently explicitly incorporated the right to
freedom of expression into law by means of the Human Rights Act 1998.
At the other end of the jurisprudential spectrum, the USA is a country
where freedom of speech is central to the Constitution by virtue of the
First Amendment. By engaging in a comparative study between these
three common law jurisdictions, it will be possible in this article to
consider the strengths and weakness of differing approaches adopted by
the three legal systems. The extent to which freedom of speech is
guaranteed will be examined in concert with the legislation designed to
criminalise discourse held to be undesirable in a multi-cultural society.
In the light of these findings, the discussion will focus upon whether the
current balancing acts represent an acceptable state of affairs, whether a
hybrid, optimal model can be determined or whether, ultimately, there
is just a ‘Sophie’s choice’ to be made by each jurisdiction.
Public order law in the UK
In order to begin to form any optimal model, it is necessary to examine
the current state of the legislation which operates in each of the jurisdic-
tions. The existing legislation in operation in England and Wales has its
roots in the disturbances which beset a number of cities in the UK in the
late 1970s and early 1980s. This led to the Government commissioning
a major review of public order law.3This review led to the Public Order
Act 1986, an Act which one observer has noted was a far more sweeping
reform than had initially been intended.4The major public order of-
fences which occupy ss 1–3 of the Public Order Act 1986 replaced a
number of common law provisions relating to riot and affray.5These
provisions concern group-related behaviour which causes or threatens
violence.6The public order legislation which is used primarily to restrict
expression is to be found under s. 5 of the Public Order Act 1986. With
the increase in incidents which have a racial and religious element, s. 31
of the Crime and Disorder Act 1998 provided for racially aggravated
public order offences.7
Section 5 of the Public Order Act 1986, so far as is relevant here,
provides:
(1) A person is guilty of an offence if he—
(a) uses threatening, abusive or insulting words or behaviour or
disorderly behaviour, or
3 This process of review is outlined in Smith, above n. 2 at 20–8.
4 Smith, above n. 2 at 26.
5 Section 9(1) of the Public Order Act 1986 abolished these and a host of other
common law offences, replacing them with their statutory progeny which can be
found in ss 1–3 of the 1986 Act.
6 Section 3 of the Public Order Act 1986 does not have any requirement that the
offending behaviour be group-related, though the behaviour must threaten
unlawful violence
7 For a discussion on the genesis of those provisions of the Crime and Disorder Act
1998 that relate to racially aggravated offences see Card, above n. 2 at 158–60.
The Journal of Criminal Law
330
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