Jolyon Maugham KC is the author of “Bringing Down Goliath – How Good Law Can Topple the Powerful” and the director of Good Law Project.
All of us have speech, and none of it is free.
All speech carries consequence, which is very often the point. Sometimes those consequences are good — you shift the dial in your direction. And sometimes the consequences are bad — others use their speech to condemn you. We all understand this — it’s inherent in all human discourse, from how we speak about others to employers’ social media guidelines.
The right to free speech, of course, also has a “term of art” meaning — a distinct legal meaning. And to a lawyer, the questions are about where the right to free speech falls away. I have no right to defame you. I cannot share your confidential information — or official state secrets. If I am in a crowd, I cannot make noise, “which may cause alarm or distress” to those nearby. In Northern Ireland, I cannot blaspheme.
But only the coercive power of the state — injunctions, fines, imprisonment — can stop me from speaking. My free speech right is a shield against its sword. It is “at the heart of any democratic state,” as a now superseded version of the United Kingdom’s Ofcom Broadcasting Code put the matter. The law, though, gives me no right to speak without consequence, to silence those who argue back. That would offend against my critics’ right to speak.
This all brings us to last week, when broadcaster and retired football star Gary Lineker was suspended from his hosting duties at the BBC, after taking to Twitter to compare the language used in the British government’s recent immigration clampdown to that of 1930’s Germany.
Nothing in Lineker’s tweets lambasting the government policy toward migrants engaged free speech rights — not as lawyers understand them.
The sanctions the BBC imposed — Lineker’s removal from the airwaves — didn’t flow from state coercion, at least as far as we know. Instead, they were, the BBC said, part of the quid pro quo for presenters. “You want to work for the BBC? Here are our Editorial Guidelines. You break them, you lose your slot.”
But, as mentioned, all speech carries consequence — something Tim Davie, the BBC’s director general, also discovered when former footballers and sports pundits Ian Wright and Alan Shearer withdrew their labor in solidarity with Lineker after his suspension.
The rhythms of speech and consequence in this incidence are not for judges. But the rest of us can still pick our way through the competing issues of the BBC’s place in national life, what sacrifice is reasonable to ask BBC presenters to make in the name of impartiality, and the public interest in ensuring experts who present on the BBC can criticize state power if their professional ethics demand it.
The main question here, at the analytical level, is whether Lineker could reasonably be thought of as speaking for the BBC when he condemned the language the government used to describe asylum seekers. Only if the answer is “yes” is there a sensible case to be made that his speech jeopardizes the impartially of the BBC.
But is there anyone in Britain who knows who Lineker is yet doesn’t know he’s a football pundit? Can anyone really have thought his views represented the BBC’s position? It’s rather unlikely.
So, then how does one explain the intervention from the (self-identifying) Common Sense Group of Conservative members of parliament, which saw 36 lawmakers and peers writing to Davie, demanding that “at the very least, Mr. Lineker apologises without reservation”? His tweets would “no doubt shake many people’s — already fragile — confidence in both the impartiality and professional standards of the BBC,” they claimed.
And how exactly should we understand this surprising sojourn from their usual concern — railing against “cancel culture”?
Their intervention is just a reprise of a familiar tussle between incumbent and insurgent power. In the 1980s, it took the form of attacks on “political correctness.” Or, as commentator Will Hutton put it: “What the sharpest thinkers on the American Right saw quickly was that by declaring war on the cultural manifestations of liberalism — by levelling the charge of ‘political correctness’ against its exponents — they could discredit the whole political project.”
Today this clash has been revived as cancel culture, in service of the same end — discrediting those who seek to tackle structural inequalities around race, class, gender and sexual identity. The language is new, but the object remains the same. The selective misuse of the notion of free speech, and its awkward sibling cancel culture, by incumbent power seeks to discredit those who challenge it.
In a Court of Appeal judgement, former Lord of Appeal in Ordinary Johan Steyn once described freedom of speech as: “The lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.”
Speaking as a law lord — a member of the House of Lords sitting as the highest court of appeal — Steyn’s formulation reminds us of what the law does teach us. That it is the coercive power of the state that restrains free speech. And it’s in protecting the space to challenge the state — as well as the ministers who wield its power — that the right of free speech is critical. If democracy is not to be reduced to a once-every-five-years event, it is all there is.
Now, had Gary Lineker spoken in support of government policy, would Tim Davie really have suspended him? Again, it seems unlikely. But Lineker chose to cut against the grain of power instead, using his position in service of asylum seekers whose voices are seldom platformed — which meant that his challenge was heard.
