The Free Speech Bill and the Crisis of Liberty: Can Britain Still Speak Freely?

The publication of the proposed “Free Speech Act 2026 Model Bill” by the Adam Smith Institute, authored principally by Preston J. Byrne and his collaborators, is not merely a policy intervention. It is an indictment. It is a challenge—direct, unambiguous, and deliberately confrontational—to the legal and cultural architecture of modern Britain. Beneath its technical provisions lies a far more fundamental question: does the United Kingdom still believe in freedom of speech as a foundational principle, or has it quietly abandoned it in favour of managed expression, regulated opinion, and permissible dissent? The significance of this question cannot be overstated, for it concerns not only the mechanics of law, but the very conditions under which truth may be pursued, error corrected, and society renewed.

The Model Bill is intentionally radical, not in the sense of novelty, but in the sense of returning to first principles. It seeks to reconstruct in statutory form what the American constitutional tradition recognises as the First Amendment: a near-absolute protection of expression, including that which is offensive, shocking, or morally objectionable. In doing so, it exposes the extent to which British law has, over decades, moved in the opposite direction—away from liberty and toward supervision. What is proposed is therefore not innovation, but restoration; not experimentation, but a reassertion of a principle that, while never fully realised in British jurisprudence, has long been acknowledged in its political philosophy and rhetorical tradition.

At present, freedom of expression in the United Kingdom is not absolute but conditional, mediated primarily through the framework of the Human Rights Act 1998, which incorporates Article 10 of the European Convention on Human Rights. While Article 10 affirms the right to freedom of expression, it simultaneously subjects that right to a broad array of limitations deemed “necessary in a democratic society,” including the protection of public order, morality, and the rights of others.^1 These qualifications, far from being marginal or exceptional, have become the operative centre of the law. They function not merely as safeguards against abuse, but as gateways through which the State may enter, assess, and ultimately regulate the content of speech itself. In practice, this has meant that the scope of permissible expression is not defined by a clear boundary between lawful and unlawful conduct, but by an evolving and often unpredictable calculus of social acceptability.

The cumulative effect of this legislative trajectory is visible across a range of statutes that, taken together, form a dense and interlocking framework of speech regulation. The Public Order Act 1986 criminalises speech deemed threatening, abusive, or insulting where it is likely to cause harassment, alarm, or distress.^2 The breadth of these terms—particularly “insulting” and “distress”—has long been the subject of criticism, not least because they rely upon subjective interpretation and shifting cultural standards. The Malicious Communications Act 1988 and Section 127 of the Communications Act 2003 extend similar principles into private and electronic communications, penalising messages that are “grossly offensive” or intended to cause anxiety.^3 Here again, the operative terms are not anchored in objective harm but in evaluative judgment, inviting enforcement that is necessarily discretionary.

More recently, the Online Safety Act 2023 has marked a decisive shift from discrete criminal offences to systemic regulation. By empowering the regulator Ofcom to impose extensive obligations on digital platforms, the State has effectively extended its reach into the architecture of online discourse itself.^4 Platforms are not merely required to remove illegal content, but to assess and mitigate the risk of harm, a concept that is both expansive and inherently elastic. The result is a form of delegated censorship, in which private companies, under threat of significant penalties, are incentivised to err on the side of removal, thereby amplifying the chilling effect on lawful expression.

Defenders of this regime argue that such measures are necessary to preserve social harmony, protect vulnerable groups, and prevent the escalation of harmful rhetoric into real-world violence. They point to historical and contemporary examples in which speech has preceded or facilitated acts of hatred and violence, and they maintain that a civilised society must not remain indifferent to such risks. This argument carries intuitive force, particularly in an age characterised by rapid communication, algorithmic amplification, and the capacity for ideas to spread with unprecedented speed.

Yet critics—among them Byrne and his co-authors—contend that the practical application of these laws reveals a different reality. They argue that enforcement has not been primarily directed at genuine threats or organised extremism, which often operate beyond the reach of conventional law enforcement, but at ordinary citizens engaged in everyday acts of expression. Cases involving parents protesting school policies, individuals articulating controversial views on matters of sex, religion, or politics, and citizens engaging in satire or polemic have become emblematic of what is perceived as an overreach. The rise of “non-crime hate incidents,” recorded by police despite the absence of any criminal offence, has further intensified concerns that the State has assumed a quasi-therapeutic role, monitoring not merely conduct but sentiment, and thereby blurring the line between law enforcement and social regulation.^5

It is in this context that the Model Bill proposes what can only be described as a legislative reset. Its central provision establishes an unequivocal right: the State may not interfere with lawful expression, even where that expression is offensive, insulting, blasphemous, or otherwise objectionable. It goes further, explicitly declaring that there exists no right in law not to be offended. This is not a rhetorical provocation but a foundational principle, intended to reorient the legal order away from the protection of subjective sensibilities and toward the protection of objective liberty. It reflects a conviction that the attempt to eliminate offence from public discourse is not only futile but destructive, as it necessarily entails the suppression of disagreement and the narrowing of permissible thought.

The Bill’s approach to unprotected speech is correspondingly narrow and carefully delineated. Adopting a standard akin to the American “imminent lawless action” test articulated in Brandenburg v. Ohio, it limits criminal liability to expression that is both intended and likely to produce immediate unlawful conduct.^6 This represents a significant departure from the UK’s current emphasis on potential or indirect harm. By requiring imminence and intent, the Bill seeks to confine the law to situations in which speech is functionally indistinguishable from action. Beyond this, traditional offences—such as fraud, threats, perjury, blackmail, and genuine harassment—are preserved, ensuring that the removal of speech restrictions does not entail the abandonment of legal order. What is eliminated is the vast intermediate space in which speech is penalised not for what it does, but for how it is received.

Perhaps the most striking feature of the proposal, however, lies in its repeal schedule. The Bill would abolish, in one legislative act, large portions of the United Kingdom’s speech-regulating framework, including the Public Order Acts, the Malicious Communications Act, and the Online Safety Act. This is not reform by adjustment but by demolition. Byrne himself characterises it as a “wrecking ball,” and the metaphor is apt: the intention is not to renovate the existing structure, but to remove it entirely and rebuild upon different foundations. Such an approach reflects a judgment that the current system is not merely flawed in its application, but defective in its underlying logic.

The proposal also addresses what its authors identify as indirect and often less visible forms of censorship. It prohibits the State from conditioning employment, licensing, or access to public benefits on the adoption or affirmation of particular ideological positions. It bans compelled speech in professional, educational, and civic contexts, thereby protecting not only the right to speak, but the right not to speak. It extends protections into employment and equality law by recognising “lawful expression” as a protected characteristic, seeking to ensure that individuals are not penalised in their livelihoods for views expressed in their private capacity. In doing so, the Bill acknowledges that the most powerful constraints on speech are often not criminal sanctions, but social and economic pressures that operate beneath the threshold of formal law.

The digital dimension of the proposal is equally significant and merits careful consideration. By repealing the Online Safety Act and introducing a provision analogous to Section 230 of the U.S. Communications Decency Act, the Bill would fundamentally alter the relationship between the State, platforms, and users. It would remove much of the regulatory pressure placed on platforms to pre-emptively police user content, thereby reducing the incentive for over-removal. At the same time, it preserves criminal liability for genuinely unlawful material, such as child sexual exploitation content, and imposes specific obligations to detect and report such material. The intention is to distinguish clearly between the policing of crime, which remains a legitimate function of the State, and the policing of opinion, which the Bill rejects.

The question that inevitably arises is whether such a transformation is either desirable or feasible within the British constitutional tradition. The United Kingdom does not possess a codified constitution in the American sense, and Parliament retains sovereign authority to legislate. Historically, British law has favoured a balancing approach, weighing competing interests rather than asserting absolute rights. Critics of the Model Bill argue that importing a First Amendment-style framework would disrupt this tradition, potentially creating tensions with existing legal principles and social expectations. They caution that the removal of existing safeguards could expose individuals and communities to harm, particularly in an era marked by polarisation and the rapid dissemination of information.

Yet the counterargument, articulated with increasing urgency by the Bill’s proponents, is that the present system has already departed from its own traditions. When laws designed to prevent disorder are used to police expression that poses no imminent threat; when regulatory bodies exercise influence over global digital platforms; when citizens moderate their speech not out of prudence but out of fear—then the issue is no longer one of fine-tuning, but of fundamental principle. A legal order that cannot clearly distinguish between speech and harm risks collapsing the distinction altogether, thereby justifying ever-expanding intervention.

At stake, therefore, is not merely a set of legislative provisions, but the character of the public square itself. A society that conditions speech on acceptability, however well-intentioned, risks narrowing the range of permissible thought and entrenching prevailing orthodoxies. It risks transforming disagreement into deviance, and dissent into danger. By contrast, a society that protects speech—even at the cost of tolerating error, offence, and provocation—retains the capacity for genuine debate, self-correction, and intellectual vitality. It recognises that truth is not preserved by shielding it from challenge, but by exposing it to scrutiny.

The Free Speech Act 2026 Model Bill does not pretend to offer a compromise between these competing visions. It forces a decision. Either the State retains the authority to regulate non-violent expression in the name of social goods, or it relinquishes that authority in favour of a more robust, and more demanding, conception of liberty. The British public, and those who claim to govern in its name, must decide which of these paths they are prepared to follow—and, perhaps more importantly, which of them they are prepared to defend.

Human Rights Act 1998, Sch. 1, Art. 10(2).
Public Order Act 1986, ss. 4A, 5.
Malicious Communications Act 1988, s.1; Communications Act 2003, s.127.
Online Safety Act 2023; Ofcom regulatory framework and enforcement powers.
College of Policing, Authorised Professional Practice: Hate Crime (guidance on non-crime hate incidents).
Brandenburg v. Ohio, 395 U.S. 444 (1969).

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