IN OCTOBER, Mr Justice Bennathan overturned the conviction of a man who burnt a copy of the Koran outside the Turkish consulate.

In the same month, demonstrators were arrested for expressing their support for Palestine Action. Nigel Farage protested about the arrest of Father Ted co-creator Graham Linehan, likening Britain to North Korea, and Tommy Robinson held a “free speech rally.”

Our police record and may investigate non-criminal speech perceived to demonstrate hostility to others. What is and is not permitted is often difficult to fathom.

Everyone believes in freedom of expression, with the exception of everyone. Most citizens believe that we should outlaw and punish a multitude of actions that harm others, such as expressing anger by striking someone or expressing our love of speed by exceeding a prescribed limit. We also criminalise many kinds of threatening or abusive language. In reality, all cultures are “cancel cultures” insofar as they indicate, by laws or custom, what is allowed and what is not.

Freedom of expression can be defended both as an individual “right” and as a social good. Expressing our views, and listening to the ideas of others, enables us to use our reason and judgement. Allowing all views to be freely expressed is also a democratic way of deciding social questions and achieving public consensus.

The battle between freedom of expression and censorship is at least as old as recorded speech and writing. The recurrence in all societies of autocratic rulers, repression and persecution tells us that a desire to be dominant and to outlaw opponents, non-believers and non-conformists is hardwired into human nature, lying in wait (according to Jacob Mchangama) “for the right moment to establish new orthodoxies and seek out fresh heretics.”

The contentious issues facing us today include political freedom of speech, freedom of religion, freedom of the press, social media and the internet and university censorship.

There is no general right to the freedom of speech in the UK. However, since 1998, limited freedom of expression is guaranteed by Article 10 of the European Convention on Human Rights, as applied in British law through the Human Rights Act 1998. The latter requires our courts to have “particular regard to the importance of the Convention right to freedom of expression.”

The motive for suppressing political freedom of expression is sometimes an autocrat’s desire to consolidate their power and to elevate themselves to semi-mythical status as the nation’s great helmsman. Autocrats such as Putin, Netanyahu, Erdogan, Orban and Kim Jong Un are contemporary examples.

The other main cause is fanaticism. Orthodoxy and heresy are two sides of the same coin. The word “heresy” comes from the Greek word for “choice” and denotes choosing an opinion contrary to authorised teaching. Since the Enlightenment in the late 17th century, leaders and censors in Europe have redirected their attention from religious heresy to supposedly corrosive philosophies, political dissent and obscenity.

Given the absence of a statutory right to freedom of expression, political dissidence in Britain can be punished severely. The designation of Palestine Action as a terrorist group, and the prosecution of citizens who express their support for it, is a prime example, straight out of the totalitarian playbook. Dealing with such demonstrators as terrorists is the modern equivalent of persecuting religious heresy.

The idea of having a choice in matters of religious belief has been the exception for much of history. The current debate centres on Islam and its alleged association with religiously driven violence and, to a lesser extent, traditional attitudes to women and gay people. It is, however, a tiny minority of Muslims who advocate or participate in religiously motivated terrorism. Islamic jurisprudence and communities are diverse, and Muslims have made tremendous contributions to philosophy, art, science and humanitarian work.

There is no compelling reason to permit or celebrate acts and speech that are gratuitously and deliberately offensive and serve no other purpose than to humiliate and ridicule believers. It is at best inconsistent, at worst hypocritical, to prosecute football fans for chanting “Chelsea Rent Boys” because it is homophobic hate speech — secular blasphemy — but excuse as an exercise of free speech burning the Koran in public.

According to the European Court of Human Rights, the peaceful enjoyment of the right to religious belief encompasses a duty on others to avoid as far as possible any expression that is, with regard to objects of veneration, gratuitously offensive and profane.

The recent Senior Law Lord Sir Thomas Bingham laid down that any restriction on press freedom must be “proportionate and no more than necessary to promote the legitimate object of the restriction.”

Although an independent press is an important democratic safeguard, the cost of access to the market means that just three companies control 90 per cent of UK national newspapers. The fact that Britain’s legacy press is dominated by a handful of powerful, often foreign-domiciled, magnates and corporations results in a degree of private censorship over what we read that may be less injurious than government censorship, but is still injurious. The Media Reform Coalition believes that unaccountable concentrations of media power are amongst the greatest threats to a free and open democratic society.

Possible legal solutions are banning the ownership of legacy media by foreign-domiciled individuals and corporations; breaking up the oligopoly; and strengthening privacy laws. Whatever position is taken, whistleblowers and the press must be free to disclose without penalty government acts that are unlawful under national or international law.

The challenges posed by the internet and social media mirror those that followed Gutenberg’s invention of the printing press in around 1450. The explosion of books, pamphlets and newspapers made it possible for ideas to spread rapidly within and across borders, gain momentum, and topple dogma, kings and empires.

The internet and social media possess the same power; they made the Arab Spring possible and exposed daily the ruthless annihilation of Palestine.

Unfortunately, many states have devised efficient ways of suppressing online dissent. According to Mchangama, the Great Firewall of China, built by the US IT company Cisco, has created a high-tech dystopia of censorship and surveillance.

The advent of mass printing also caused moral panic because of the stream of virulent political and religious propaganda, hate speech and obscene cartoons. The internet has likewise enabled the mass dissemination of disinformation, child sexual abuse images, hatred and personal abuse.

In Britain, the Online Safety Act 2023 attempted to address these challenges. It requires social media operators to remove illegal content, address harmful material for children, and enforce age limits for adult content.

The importance of free speech within universities cannot be overstated. The development of knowledge and students — and the testing of prevailing theories, ideas and values — requires openness, listening and tolerance. In England and Wales, the Higher Education (Freedom of Speech) Act 2023 came into effect on August 1 2025. It includes a strengthened duty on universities and colleges to ensure lawful free speech and academic freedom for staff, students and visiting speakers.

The history of freedom of expression is the history of bullies, bigots and egotists. The root of the problem was identified centuries ago by Castellio: “Scarcely anyone is able to endure another who differs at all from him. Although opinions are almost as numerous as men, nevertheless there is hardly any sect which does not condemn all others and desire to reign alone.”

Freedom of expression is a foundational value. The choice for democrats today is between the traditional, permissive model of freedom of speech, advocated by Mchangama, and the more interventionist approach advocated by Richard Moon.

The traditional view, favoured in the United States, distinguishes between speech and action. An action may be prosecuted but speech may only be banned if it creates a clear and present danger and constitutes “incitement to imminent lawless action.”

Moon’s view is that the primary problem today is no longer censorship, but the barrage of targeted disinformation that is undermining our ability to make judgements about truth. Such disinformation is a huge threat to democratic societies. While legislation should require social media platforms to filter or take down unlawful material, privately owned US platforms should not be able to remove speakers or messages without meeting certain standards. A system of co-regulation, with state oversight of systems established by private providers to filter out illegal material, is the way forward.

It is probably impossible to create a Democracy Firewall. However, there are things we could do: amending the Official Secrets Act to protect disclosures of unlawful government acts; putting the definition of terrorism on a sensible footing; breaking up the legacy media oligopoly and banning foreign ownership; banning the sale of personal online information; and passing a Freedom of Expression Act that provides a statutory right to freedom of expression.

Each citizen will have their own view. Whatever position is taken, we must be vigilant against attempts to check the expression of opinions that we do not share. Tolerating only what we agree with is intolerance, not tolerance.

Freedom is always and exclusively freedom for the one who thinks differently.

Anselm Eldergill was a judge in the Court of Protection until 2024. He is a solicitor, an honorary professor of law and an academic associate at Doughty Street Chambers.