To Win Back Free Speech, Britain Needs a New Constitution

America has the strength to resist British censorship. Britain must find the courage to end it.

Who I Am and What This Is About

My name is Preston Byrne. I’ve fought foreign censorship on behalf of individual and corporate clients as practicing lawyer for years. I’m also a Senior Fellow of the London-based liberty think-tank, the Adam Smith Institute.

This essay is about the United Kingdom’s free speech framework, which is broken beyond repair. It cannot be saved by piecemeal or incremental measures.

The UK’s new global censorship regime, the Online Safety Act, and its official enforcer, the Office of Communications (better known by its Orwellian abbreviation “Ofcom”), will not be able to govern the global Internet.

The Internet is predominantly American, and the UK is simply too weak to override America’s free speech protections in the First Amendment. But while the UK’s censors can be defeated easily by Americans, they can only be abolished by Britons.

The task of reclaiming the UK’s civil liberties is one that requires Britons to fundamentally reevaluate the usefulness of their existing institutions and their relationship with the state.

This is my contribution to that discussion.

Part I: The Twilight of a Free Society

In the United Kingdom, doing this - and nothing else - will get you arrested, charged, and convicted of a crime:

Free speech is dead in the United Kingdom.

A widening realization of this fact contributes to the United Kingdom’s growing, if undeclared, domestic political crisis. The current government, less than a year old, is the most unpopular in recent British history. An upstart political party that has never governed, with only five elected legislators, is leading in the polls by hundreds of seats.

Above all, it appears to many that the government has finally gone too far in the use of state violence - armed men carrying out arrests - to suppress dissent, at the same time that rising public awareness of the UK’s historical, arguably structural, failure to protect freedom of speech has reached a boiling point. Recent Financial Times and Economist articles on the subject – in the case of the Economist, a cover story – evidence increasing unease with official censorship among the educated classes. Google Trends search data reveals that the average Internet user is more worried about it than ever:

What is happening today, it seems, is that the entire population of the UK is in the midst of realizing that whether a controversial idea may be safely expressed depends, in large part, on the hearer, and not the speaker.

Story after story in the national press – parents arrested for WhatsApp complaints, protestors jailed for silently and peacefully praying on the sidewalk – has taught the British public a once esoteric legal truth, something which, a decade ago, was widely known only to civil liberties lawyers: speech which would be legal among friends, like-minded individuals, or simply people with a higher tolerance for ideas with which they disagree exposes the speaker to risk of arrest upon first contact with a person who objects.

An American Exile’s Perspective: Fifteen Years of Public Free Speech Advocacy…

I approach the question of free speech from an American perspective because I believe that perspective is morally right. I was born in the United States, trained and qualified as a solicitor in the United Kingdom, dual qualified as an attorney in the US, and turned down an opportunity to obtain a British passport, despite the fact that my family has roots in the British Isles dating back thousands of years, and that my father was a British citizen by descent. This decision was largely motivated out of fear that British citizenship posed unacceptable risks to my political and economic freedom.

Given the country’s backslide on free speech in the eight years since I left, those fears were not misplaced. I will never consent to be ruled in this way. Continuing to be based abroad, and enjoying the legal and diplomatic shelter of the United States, I feel very comfortable claiming that the freedom of speech, as Americans understand it, does not exist and has never truly existed in the UK. I find it difficult to believe that any system which suppresses speech, in the manner that Britain’s system does, has any moral authority to govern.

I have been a dedicated UK free speech activist for a decade and a half. One of the earliest articles I wrote on the topic was about a Public Order Act arrest of a protestor at an event David Cameron was hosting in 2012; she yelled that the Prime Minister had “blood on his hands” for cutting Disability Living Allowance, and was convicted of “insulting” the PM (despite the fact that her remarks were, arguably, true).

In 2016 I wrote a comparison of UK and US civil liberties which has been widely read. In 2020, for the Adam Smith Institute, I wrote a position paper calling for the adoption of a UK Free Speech Act, complete with a draft bill of the same.

Four years later, Reform’s 2024 election manifesto contained an almost verbatim commitment to enact a UK Free Speech Act, marking out Reform as the only major political party in 40 years willing to not only reject the malaise of managed decline but also to affirm, unequivocally, that protecting the British people’s freedom, not seeking to control them, is the first duty of government.

…And Eight Years In the Trenches Fighting Global Censorship

Think pieces don’t pay the bills, though, so most of my involvement in this field has been as a private practice attorney which, for the most part, is a business one carries on in the shadows. Since 2018, much of my practice has been dedicated to defending Americans against corporate and government efforts to silence them. My job, for those clients, was to help Americans to structure their affairs, and businesses, to take maximum advantage of the protection of the First Amendment and build censorship-resistant companies.

In that work, I’ve reviewed hundreds of threats and demands from regulators, police forces, judges, quangos, and NGOs, taking the form of letters, emails, and orders, citing domestic statutes and warning the recipients of de-platforming, fines or imprisonment.

I’ve seen censorship demands and warrantless information requests, aimed at suppressing what, in America, would be entirely lawful political speech, issue from many ostensibly free and democratic countries. These were often fielded by me when I was in solo practice, with zero institutional backup.

Britain Thinks It Can Police America’s Speech…

The government of the United Kingdom claims that UK censorship laws - including laws and codes of practice pertaining to content risk assessment, content removal, and warrantless information disclosure - apply to companies operating from the United States. Writing 18 months ago, Ofcom “[estimated] the new duties cover more than 100,000 services, which range in size.”

Given (a) the comparatively diminutive size of the UK and European Internet sectors and (b) the fact that Ofcom’s first, entirely unsuccessful, attempts to force companies to furnish it with risk assessments were exclusively targeted at Americans, it seems pretty obvious that Ofcom had managed to convince itself that it would have the power to regulate American companies’ content moderation policies.

In this regard the UK is just like the governments of Russia, Brazil, Germany, France, Singapore, Canada, Australia, and New Zealand, among others, who also claim that their censorship rules have (or, in the case of proposed rules, will have) extraterritorial application on Americans, either expressly by law or in various notices I’ve had the benefit of reviewing from those places.

They are all wrong, as evidenced by the fact that in the eight years I’ve been taking on free speech cases, the foreign censors’ win rate has been 0%. Against one guy in Connecticut with a Westlaw subscription and a blog.

No foreign state has ever compelled any client of mine to remove so much as a comma from their websites in nearly a decade of attempts.

When you force foreign censors to play by American rules, the censors always lose.

…But, in Reality, Britain Is Powerless to Censor Americans

The reason they fail is simple: the First Amendment is such a powerful legal instrument, that American compliance with another country’s censorship laws is voluntary. It does not matter how authoritarian, how strident, or how heavily armed, nuclear or otherwise, the foreign country in question may be. The result is always the same.

Ofcom, the UK’s Internet speech enforcer, would prefer that Americans not know this. The dozens of large, London-based international law firms spinning up enormous Online Safety Act compliance practices for American companies likely assume, without thinking, that Americans will prefer to spend vast sums on compliance teams instead of brushing up on their U.S. constitutional law - if they’re even aware of the First Amendment option at all.

All of this is to say that an all-American business, properly structured to avail itself of the full protections of the First Amendment, is essentially immune from foreign censorship.

No foreign government can compel an American citizen, on American territory, to abandon their First Amendment rights. They cannot order any American application, on American servers, to shut down or remove posts they find offensive. Whatever their domestic laws might say, their orders are null and void in the United States and no American court, state or federal, will enforce a foreign censorship order, including under the UK’s Online Safety Act, the EU Digital Services Act, or any other foreign censorship law.

American clients who have sought my advice in free speech cases are no more required to obey British censorship laws than my father’s or grandfather’s American clients were required to obey the censorship laws of the Soviet Union. Our most basic law - our Constitution - was expressly designed to prevent this kind of foreign interference. That is the law that applies in our land.

This might be why Ofcom’s first three enforcement demands under the Online Safety Act - all targeting Americans - were flatly rejected by Ofcom’s targets. After that firm rebuff, Ofcom beat a very hasty tactical retreat.

Foreign censorship is wholly dependent on voluntary and precarious American deference. If the “Return-to-America-Option” starts to make sense for Americans, then the Online Safety Act’s credibility as a global content governance regime will collapse - and the EU Digital Services Act censorship regime, as well as every other such regime across the planet, will collapse with it.

If a handful of smaller-but-notable platforms refuse, such as Gab, Truth Social, Minds, or Signal, that collapse will be slow-motion but inevitable. If even one of the majors defects - for example X, Rumble, Facebook, or Substack - the collapse will be instantaneous.

[EDIT, 10 JUNE 2025: four days after this post was first published, Ofcom announced it was taking action against a fourth U.S. company, 4chan - which didn’t even deign to reply to Ofcom’s letters. There is absolutely nothing Ofcom can do to stop 4chan from making this choice - meaning the OSA will wind up being 0-4 against Americans in the first three months of its enforcement efforts.]

A Lawyer’s Duty Is to His Client and the Constitution, Not the Censors. When the First Amendment Is the Only Defense, It Must Be Raised

As an American attorney, I swore an oath that made it clear that my first duty is to my clients, and my second, co-equal duty is to support the Constitution of the United States. So has every other American attorney. These duties apply to all American law firms.

Being prepared to call down the full might of the United States and its laws to save our clients from foreign censors, if they have retained us for this assistance, is not only tactically sound, but also required - part and parcel of the mandatory ethical obligations to be a zealous and competent advocate that every American lawyer owes to our clients under the applicable Rules of Professional Conduct (Rules 1.1, 1.3, 2.1, and 8.4 immediately come to mind).

The UK’s Censorship Regime Ends 12 Miles Off the British Coast

Legal reality, in America, is that, for an American, the UK’s censorship regime ends 12 miles off the British coast. In case anyone needs a reminder, the United States and the UK fought a war to settle this question. The UK lost.

If the UK should attempt aggressive enforcement of the Online Safety Act, or EU countries attempt to do the same with the EU Digital Services Act, against Americans, it should not take any competent American lawyer more than thirty minutes to conclude that relocating operations entirely to the United States is all that is required to guarantee a client’s political freedom. It is entirely possible for a first-year associate in Kansas, standing alone, to bring a vast censorship regime to a screeching halt should that bureaucracy dare to cross into the realm of the Bill of Rights.

Complicating matters for foreign censors, the U.S. federal government has, belatedly, joined the fight. At the end of May, Secretary of State Marco Rubio announced that his department would seek to issue travel bans on foreign officials who try to censor American citizens. While this policy is welcome, it is not entirely necessary, at least for Americans who choose to walk away from Europe and run their businesses, and invest their capital, in the United States and with U.S. personnel, as American trade policy now encourages.

America’s system protects speech by design. Britain’s suppresses it out of habit, and if Britain is to be competitive in an American-led world, this bad habit must be broken.

Part II: The UK's Legal System Is The Problem

What “Rule of Law” Means

As public dissatisfaction grows with British censorship, many in the legal and political community are beginning to ask a troubling, but necessary, constitutional question: does Britain still uphold the rule of law, or has it drifted into rule by political fiat?

Before answering, it is useful to agree a definition of what “rule of law” means. Guiding political action requires not lengthy philosophizing, but a clear, succinct, and tweet-length-shareable set of criteria – victory conditions, if you will – to act as a guidepost.

Lon Fuller’s treatment of the subject in The Morality of Law specifies 8 key criteria, which I will distill into three broad, social media-friendly categories:

· Predictability: the law must provide clear, consistent, objective standards so that individuals can know in advance what conduct is lawful and what conduct is not; including the avoidance of laws commanding the impossible or in relation to which compliance is impossible.

· Equal Protection: the law must apply equally to all people, regardless of their status, position, or individual or group identity.

· Limited State Power: the legal system must be structured to limit arbitrary power, reduce opportunities for political interference with the law as promulgated, and constrain the discretion of those who enforce and interpret the law; there must be constancy over time, such that there is a “prevention of discrepancy between the law as declared and the law as actually administered.”

It is obvious to an American observer of British laws (and particularly of British speech codes) that the United Kingdom’s civil liberties laws cannot be described in these terms – and therefore it cannot be said that the United Kingdom has rule of law in the civil liberties domain.

One Cannot Predict When One’s Speech Will Offend

British jurist A.V. Dicey, writing in happier times for the English legal system (1885), argued that the rule of law was a “distinctive characteristic of the English constitution” and that its presence in Britain meant that

In England… each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded.

Dicey may have been correct once. No longer.

America, though not a perfect country by any stretch, gets one thing very right compared to the rest of the Western world: it doesn't arrest or jail its own citizens because their speech is politically uncomfortable or offensive. The UK does, routinely, for such mundane political acts as protesting against the monarchy, quoting Winston Churchill in public, espousing traditional notions of Christian morality, silently meditating on the sidewalk, protesting against budget cuts, and many other “offensive” expressions of honestly-held belief.

Criminalized by Offended Listeners, Not by Conduct

In the last 90 days alone, a UK appeals court upheld the conviction of mother Lucy Connolly for venting her frustrations about immigration issues in a strident, but ultimately non-threatening, fashion online; UK police arrested campaigner Peter Tatchell for carrying a sign that said “STOP HAMAS EXECUTIONS!” because sympathizers of the international terrorist group Hamas were offended by the sign; and the UK has drawn the ire of the U.S. Department of State for the arrest and conviction of Isabel Vaughn-Spruce for silently praying near an abortion clinic.

It is so unnatural to penalize people for honest expressions – so alien from their expectations of how Britain should function – that, in most if not all of these cases, speakers were shocked to learn that they had even committed a crime.

The Case of Hamit Coskun: If They Can Jail Him, They Can Jail You

As another example, see the conviction, four days ago, of Turkish anti-Islam protestor Hamit Coskun for burning a Koran at the steps of the Turkish Embassy. Per the Telegraph, he was prosecuted not because of the content of his ideas but because his remarks were “done in public” where they could be perceived by an offended hearer.

That made those remarks an offence; if he had burned the Koran in his back yard, among fellow-travelers, presumably no police report would be written (but if he’d posted it online, there surely would have been a problem.) The situation in Scotland is even grimmer, with hate crime legislation applying to even private conversations held within the privacy of one’s home, as long as the government deems that the ideas in discussion are “hateful.”

What is “hateful” and what is not is, of course, an inherently subjective judgment. In the United States, the Constitution bars the government from making such determinations. Under the First Amendment, speech regulations must be content neutral – meaning the government cannot regulate expression based on the ideas it conveys or the emotional reactions it provokes. As the U.S. Supreme Court affirmed in R.A.V. v. City of St. Paul (1992), even offensive, hurtful, or deeply unpopular speech is protected and any regulation seeking to restrain it is unconstitutional to the extent that the regulation “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

The First Amendment does not permit government officials, whether local police, prosecutors, or federal agencies, to decide which ideas are too dangerous or too upsetting for public discourse. Nor does it allow those who are upset to call down the police to silence their philosophical opponents – the sole recourse to objectionable speech, in the American interpretation, is counterspeech.

By contrast, British law increasingly permits (and in practice, encourages) violent government suppression of dissent. Police are empowered to investigate “non-crime hate incidents” and enter the names of thoughtcriminals into government databases – permanent black marks against their name, disclosable on criminal background checks, in relation to which there is no right of due process nor right of appeal – based solely on an unverified complaint, and never even subject to the scrutiny of a judicial fact-finder. Prosecutions proceed not on the basis of violence or direct incitement, but on the self-reported emotional reactions of third parties.

Rather than protecting speakers from arbitrary state power, this system protects state officials from the discomfort of being challenged by speakers who dissent from ideas the state supports.

No Matter Who Is In Power, British Justice Is Two-Tier

Keir Starmer, the Prime Minister, has rightfully been accused of presiding over a “two-tier” system of policing political expression – earning him the moniker “Two-Tier Keir.” In my view, the critique is valid: not necessarily because of anything Starmer has intentionally done, but because he presides over the legal structure which itself has long guaranteed uneven enforcement of the rules regardless of the viewpoint being expressed. The moment the state is empowered to regulate speech based on its content, it must choose sides: between speaker and listener, between one political claim and its rebuttal.

Every police intervention into political speech is, at its core, an act of ideological preference. Every time a constable places a speaker in handcuffs, that constable crystallizes a formal legal determination not just whether a law has been broken, but which viewpoints are permitted and which are not.

Consider the subject of Islam as a political question. Islamist speech has certainly been suppressed, as seen in Abdul v. DPP (2011), the proscription of al-Muhajiroun under the Terrorism Act, and the arrest of Anjem Choudary under the Public Order Act for organizing protests unauthorized by the state – consider the absurdity of such a statement, for a moment, before you continue reading – outside the Danish Embassy in 2006. These are not subtle measures; they reflect the full force of the state used to silence a particular brand of religious-political ideology.

But suppression also falls on the opposite side of that argument. In Norwood v. DPP (2003), a National Front member was convicted for displaying a poster reading “Islam out of Britain.” More recently, a protester was arrested for mocking Hezbollah leaders at a demonstration. And as discussed earlier, Hamit Coskun was convicted not for inciting violence, but for the expressive act of burning a Koran in public and expressing anti-Islamic views under circumstances where those views risked actually being heard.

The British System Does Exactly What It Is Designed To Do

To be clear, my position is viewpoint-neutral, and that no speaker – whether Islamist or anti-Islamist, monarchist or republican, Catholic or Protestant, “woke” or “based” – should fear arrest for the nonviolent expression of their political views. The fact that both sides of a political dispute are able to be punished under the same vague laws is not evidence of viewpoint-neutrality. It is, in fact, quite the opposite: proof that the law hands police and magistrates wide discretionary powers to decide which viewpoints are acceptable, depending on the social or political mood at the time and on the ground.

Every arrest under these laws is necessarily two-tier. Every conviction is a reaffirmation of the principle that, in England, one should never speak in a manner that is likely to offend, crushing the heckler to protect the heckled. This is not the rule of law: it is raw, unbridled power, dressed up with a hi-vis vest and a badge, a world where the only “safe” speech is that which the authorities will likely ignore.

Rule of law is not the same thing as the rule of a constable’s whim. And if, as Stafford Beer once said, “the purpose of a system is what it does,” then the purpose of UK speech law today is almost certainly not to protect expression, regardless of whatever the Human Rights Act might say; it is to punish dissent from elite orthodoxy, as defined by men in robes, and enforced by men carrying truncheons and guns.

A Free Speech Act Is No Longer Enough - Deeper Reforms Are Needed

When I wrote my 2020 paper for the Adam Smith Institute on free speech, I argued that the required changes could be achieved through a United Kingdom Free Speech Act, without major constitutional changes.

I no longer believe this is the case. I now believe that Britain needs a written constitution that enshrines free speech – and many other political rights – as non-derogable principles, ironclad guarantees that even Parliament cannot override, an irreducible core of personal freedom into which no state power may enter.

Why? Because every legislative fix proposed in recent years has failed to address the root problem: the doctrine of parliamentary sovereignty. This is the idea that the King-in-Parliament wields unlimited power with no guardrails, and has long been a foundational principle of British constitutional order. The British state does not concede the existence of any legal limits on its own authority. Individual rights have become casualties of rigid adherence to this ancient doctrine, which, plainly, no longer serves the interests of the society it governs.

If the UK is to become a free society again, the doctrine of parliamentary sovereignty must be abolished.

Part III: The Refounding

Parliamentary supremacy, in its current form, means that there are no freedoms, only licenses. If Parliament’s power to allow its agents to ban offensive speech and silence a speaker is absolute, then the power of shifting cultural winds to define what speech is offensive and what speech is not, and to silence speakers who resist that change, is absolute too.

British State Power Grows Without Consent

This is not theoretical. It is a lived reality, manifest in the expanding criminalization of speech, the growing erosion of protest rights, and the metastasis of censorship powers handed to unelected bureaucrats like Ofcom amidst rising, and righteous, public anger over being denied that most basic of freedoms, the freedom to receive and impart ideas without fear of imprisonment.

We see this erosion in the variable treatment of free speech cases having very similar facts over the last quarter-century. Take for example, 1999’s Redmond-Bate, and compare it to 2011’s DPP v. Hammond, both of which involved street preachers espousing traditional notions of Christian morality. Redmond-Bate resulted in an acquittal; Hammond, in a conviction.

Most similar cases to these, heard today, result in convictions. There are of course occasional outliers where the courts, under public pressure, go the other way – such as they did in Miller v. College of Policing in 2021. Overwhelmingly, however, the UK’s politicians, jurists, and police regard free speech as a limited right, and they treat it as such.

The law did not materially change during this period. What did change were fashionable opinions about speech constituting violence, or group libels being illegitimate political speech. These changes were never voted on, never approved by Parliament, never consented to by the public. As society lurched left, so too did the UK’s institutions, wielding overbroad powers granted in a different political era. It should be no surprise, then, that as censorship powers are used more widely, and begin to clash with the beliefs of average people, that there should be conflict, rising awareness, and, in the fullness of time, political change.

A New Founding Is Possible

As the Google Trends data, shared in Part 1, bear out, as free speech issues appearing in the British press on an almost daily basis reveals, and as election polling strongly suggests, the United Kingdom is potentially on the cusp of momentous, epochal political change. The question we face is what those changes should be and how best we can bring them about.

The UK has a storied history of innovations in political liberty through documents like the Magna Carta and the Bill of Rights 1689. Even the U.S. Constitution was grounded in English legal principles and tradition – and it was drafted by British subjects who, like us, were dissatisfied with many of the same political problems the UK grapples with today. Plain old English common sense and grit proved a superior system to that employed by its fascist enemies on the continent during the Second World War. We can best honor the memories of all of those triumphs by recognizing that the UK’s current legal framework is no longer fit for purpose.

From Reform to Rebirth

As the British have innovated before to preserve and extend the realm of human freedom, it is time for the British to do so once again. We need a new arrangement that does not merely affirm, but asserts, in unambiguous terms, that the rights of the individual precede the authority of the state.

On the subject of speech, what is clear to me is that Britain needs its own First Amendment: an impervious shield beneath which the freedoms of conscience and expression may prosper. Anything less risks leaving incomplete the important work of enshrining free speech permanently in UK law.

Britain also needs other freedoms: a right against self-incrimination without adverse inferences being drawn from silence, a right to be free from unreasonable searches and seizures, a substantive due process right, and even, amidst rising crime, a right for law-abiding citizens to protect themselves. These are all rights the Americans have, and the British do not.

Predictability, equal protection, and limited government: the rule of law will be restored in the UK when we can confidently claim that the exercise of fundamental rights exists within such a framework. Would-be law reformers have a great many rights to reclaim from their government before we can say that this state of affairs exists in Britain.

Before we address any of the other rights, however, we must first secure freedom of speech - so that British society can vigorously debate how it should be ordered, openly, earnestly, and honestly, without fear of arrest.

A Message to British Reformers

Thomas Paine, writing in 1776, reminded his readers: “We have it in our power to begin the world over again.”

Today, for the perhaps first time in the United Kingdom’s history, a free speech movement worthy of the name, led by organizations like the Free Speech Union and adopted by rebel political parties like Reform, is beginning to believe that the United Kingdom itself, ancient though it may be, still has vitality, and can be remade.

My parting message to British reformers is this: be infinite in your ambition. Consider what the world might look like if you were to not just reform, but replace, through the democratic process, your constitutional order with something entirely new.

Until Britain becomes a country where liberty is guaranteed, at which time I shall happily return home, I will remain exactly where I am: in America, free, writing, watching, waiting, and hoping. Hoping that one of you, preferably many, will pick up the torch.

Free Men Don’t Ask for Permission

Rebooting your constitution, and casting your basic liberties in iron, is nothing less than a new founding for your country. That work is best entrusted to those of you who are more British than I am.

This may sound impossible. It is not.

You do not need anyone’s permission to begin. You can simply begin.