Conservative politicians in the UK and the US are making headlines for regulatory efforts targeting core free speech principles under the guise of protecting members of the public from harm. Four days prior to the coronation of King Charles III – a coincidence according to the UK government – the controversial Public Order Act 2023 (POA 2023), introduced by former Home Secretary Priti Patel, received royal assent. The application of the new law, in conjunction with the expansive powers granted to police under prior legislation, led to the controversial targeting and arrest of dozens of peaceful anti-monarchy protesters during the coronation proceedings. In the US, Republicans are responsible for a flurry of recent regulations censoring expression concerning sexual orientation, race, and other issues at the forefront of the so-called ‘culture war’ in public school classrooms and libraries across the country. These regulatory efforts highlight the increasingly illiberal posture of conservative parties in these countries, which undermines shared democratic values and reflects a broader shift toward the use of anti-democratic means to achieve political ends.

The Expanding Assault on Free Speech in the UK: New Police Powers to Quash Political Protest 

The newly minted POA 2023 adds to the already robust legal framework for the maintenance of public order in the UK, including the Police, Crime, Sentencing And Courts Act 2022 and the Public Order Act 1986. This raises the question of why, given the extensive tools already available to the police in this context, new legislation was necessary. The government answered this question by pointing to ‘the serious disruption caused by a small minority of protestors,’ – identifying Just Stop Oil as an example – and claiming that the new law will enable police to take a ‘proactive approach to prevent such disruption happening in the first place’. This ‘proactive approach’ includes a new criminal offence of ‘locking on’ and extending stop and search powers for the purpose of seizing objects (such as lock-on devices) that maybe used in the commission of protest related offences. The new law also amends prior legislation to empower police officers to authorise stop and search of individuals absent suspicion of wrongdoing if they reasonably believe that people in the area are carrying objects that may be used in connection new offences.

The Metropolitan Police offered a preview of its approach to these news powers by tweeting that during the coronation its ‘tolerance for any disruption, whether through protest or otherwise, will be low. We will deal robustly with anyone intent on undermining this celebration’. This proved to be the case as the police arrested dozens of anti-monarchy protesters,notwithstanding their cooperation in liaising and negotiating with authorities prior to the event. The BBC reported that some of these arrests were predicated on the ‘lock on’ provisions in the 2023 Act, with the police identifying items such as straps that could be used for illegal purposes, but that the protesters claimed were intended to secure their signs in place. Several reports also indicated that police threatened protesters with arrest should they shout ‘anything that may be deemed offensive’. An officer, when asked by a protester whether they could chant ‘not my king’, responded: ‘I wouldn’t advise it, no’. 

While none of these protesters was ultimately charged with an offence under the new law, the chilling effect of its application was clear and highlights the problems associated with granting expansive and vaguely defined powers to the police to ‘prevent’ disruption by silencing particular types of speech before it occurs. Moreover, the police’s approach to anti-monarchy protesters illustrates that its application will extend well beyond Just Stop Oil and the other groups that the government claims the law targets and, in so doing, threatens unpopular political speech regarding key debates in public discourse, including but not limited to, the role of the monarchy in modern Britain. 

The right to engage in political speech, including in the form of protest, enjoys robust protection under Article 10 of the European Convention on Human Rights (ECHR), incorporated into UK domestic law by way of the Human Rights Act 1998. The protection of the expression of personal opinions, secured by Article 10, is one of the objectives of the freedom of peaceful assembly enshrined in Article 11. The European Court of Human Rights (ECtHR) emphasises that one of the aims of Article 11 is to ‘secure a forum for public debate and the open expression of protest’. 

Importantly, Article 10 protects protesters’ right to use language that shocks, offends, or disturbs, as the ECtHR recognises that Article 10 applies to ideas that are not ‘favourably received’. Indeed, one of the primary objectives of protest is that it is not favourably received, often by those in power. While public authorities may legitimately interfere with these rights for the purposes of preserving public order so long as such interference is proportionate, the police’s use of the POA 2023 is concerning as it was used to prevent members of the public from peacefully assembling for the purpose of engaging in core political speech absent any credible evidence that such protest caused, or was likely to cause, a disruption to the coronation proceedings. Nor has the government offered a persuasive argument for why prior legislation, which grants the police with extensive powers to maintain public order, was insufficient. 

The Expanding Assault on Free Speech in the US: A Wave of Regulations Censoring Ideas in Public Schools 

The current assault on free speech by the Republican party takes varied forms, with much attention currently directed to prohibiting discussion of, and books pertaining to, topics deemed ‘divisive’ by conservatives, including systemic racism and sexual orientation. Perhaps the most well-known of these is Florida’s Parental Rights in Education bill – commonly known as the ‘don’t say gay’ law – which prohibits all discussion of sexuality and gender identity in schools, with a few narrowly tailored exceptions. PEN America is tracking efforts by conservatives to ban books and ideas in public school classrooms and libraries across the country, the most egregious of which are in Republican led states. During the first half of the 2022-23 school year, PEN identified 1,477 instances of individual books banned, the overwhelming majority of which are stories by and about people of colour and LGBTQ+ individuals. 

These measures have sparked litigation across the country, arguing they violate core principles of the First Amendment to the US Constitution, and drawn sharp rebukes from domestic human rights defenders. The US is well known as an outlier in providing expansive protections to freedom of expression and academic freedom has long enjoyed robust First Amendment protection. Specifically, the Supreme Court holds that academic freedom is of ‘transcendent value’, with the classroom serving as a marked illustration of ‘the marketplace of ideas’. Moreover, America’s future hinges ‘upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection’. The Court also recognises the ‘special characteristics of public school libraries’, holding that government actors may not remove books ‘simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion’. 

Given the Supreme Court’s application of the First Amendment in the context of public education, efforts by conservatives to dictate what types of ideas are permissible in classrooms and libraries are blatantly unconstitutional and an assault on the most fundamental principles underpinning American democracy, including that the government has no authority to censor ideas.  

A Concerning Illiberal Shift in Conservative Politics 

These regulatory efforts are packaged by conservative politicians in the UK and the US as efforts to protect citizens by preserving public order and keeping harmful material away from children, respectively. This obscures the common effect of such regulations, which is the control by conservatives of the types of information and ideas that are accessible to the public and which are deemed permissible in public discourse, whether in the form of public displays of anti-monarchy sentiment or the discussion of LGBTQ+ identity and other issues unpopular with conservatives in public schools. 

It is also important to contextualise these issues as they reflect a trend of increasing illiberalism among conservatives in these countries. This includes the UK Home Secretary’s suggestion that the UK should leave the Council of Europe and that the opinions of the ECtHR are at odds with British values and a migration bill supported by the Prime Minister that breaches domestic and international law. Meanwhile, in the US, Republicans are passing some of the most restrictive abortion regulations on the planet and enacting legislation making it more difficult for Americans to vote based on specious claims of voter fraud.

For all of these reasons, human rights defenders should be deeply concerned by recent efforts in the UK and the US to silence and delegitimise constitutionally protected political speech, not simply due to the dangers such efforts pose to the shared value attributed to freedom of expression, but also because these efforts highlight the ways in which conservative parties in these countries are taking increasingly illiberal positions on matters fundamental to healthy democracies. Accordingly, efforts to control the types of ideas permissible in public spaces should be viewed within the context of a broader shift toward illiberalism that, left unchecked, threatens more than free speech. 

Eliza Bechtold is Lecturer at the School of Law, University of Aberdeen.

(Suggested citation: E. Bechtold, ‘Recent Efforts to Regulate Expression by Conservatives in the UK and the US Highlight a Shift Toward Illiberalism’, U.K. Const. L. Blog (1st June 2023) (available at https://ukconstitutionallaw.org/))