We hear a lot about freedom of speech at the moment. I don’t remember it being so high up the list of subjects when I was younger. We all though considered ourselves naturally to have that right and, if you asked where it came from, the reply would probably be: ‘Magna Carta’. It doesn’t.

Magna Carta established the principle that no one, including the king, is above the law, although that was not for the benefit of the common people. King John had alienated most of his Barons by his extortionate taxes, vicious behaviour and by losing enormous chunks of France he had inherited from his parents.

The Barons chased him out of London, and civil war looked imminent. Magna Carta was the basis of a temporary truce between probably the worst King in our history and his revolting Barons. When they entered into the agreement at Runnymede near the Thames in June 1215, neither the King and his sycophantic supporters, nor the overbearing and rebellious Barons had any real intention of standing by what they had agreed. And they did not.

Within three months, the King had not only broken many of his obligations, but he had persuaded Pope Innocent III to annul the Charter altogether. The Pope condemned Magna Carta partly because it provided for a committee of 25 barons to supervise the King, and therefore was seen as a usurpation of Royal supremacy, then a Catholic doctrine. He described it as “an insult to the Holy See” and “a disgrace to the English nation”, and he forbade the King or the barons to recognise it “on pain of excommunication”.

So not a good start for our founding document. And if, at the end of the 1215, you had told King John or the Barons, that, in 800 years’ time, their contemptuously spurned peace treaty would be revered as “the most famous milestone of our rights and freedoms” or “the greatest constitutional document of all times”, they would probably have suggested that you apply for the job of court jester. Shakespeare makes no mention of it – even in his play ‘King John’.

But at various times in our history, when we needed some document to give a justification for resistance to an overbearing monarchy, it kept reappearing. During the 1620s, seeking to support the rule of law and to challenge the royal absolutism of Charles 1, the great English lawyer, Sir Edmund Coke rescued Magna Carta from its previous two centuries of obscurity. He suggested in his writings that it was the origin of not merely liberty of the subject, but, rather optimistically, trial by jury, habeas corpus, and parliamentary sovereignty. But freedom of speech? No mention.

And the state continued to use the law to control what people could say. There was the law against both blasphemy and obscenity, punishable under both common law and statute. And then there was the case in 1606, "De Libellis Famosis" (On Defamatory Libels).

John Lambert, had circulated anonymous satirical verses attacking the Archbishop of Canterbury and other senior clergy. Although the verses were circulated to only a few people, Lambert was prosecuted for publishing a libel that defamed not just individuals but, by extension, the public authority of the Church and state. The infamous Star Chamber determined four legal principles which were to become the new criteria for speech and publication:

1.      Libel was now to be regarded as a crime, rather than simply a private wrong. “The publishing of a libel is an offence against the state, tending to breach of the peace, as well as against the particular party slandered”. 

2.    True statements could still be regarded as libellous, as public scandal was the harm, not the falsehood.

3.    Libel against officials or the state was to be regarded as a more serious offence than private libel because it could erode public trust in governance.

4.        That the intent behind the libel was to be regarded as irrelevant. The mere act of publishing or distributing a libel – even privately or anonymously – was to be regarded as sufficient for guilt.

During the seventeenth and eighteenth centuries, it became known as “seditious libel” and was the central instrument of state control over expression.

Again considered by some to be a landmark in our liberties, the famous Bill of Rights issued in 1689, in fact only guaranteed freedom of speech in Parliament. However, despite the law’s discouragement of freedom of speech, the situation in reality was quite different.

The period 1600 to 1800 saw a dramatic expansion of public discourse; coffee-houses, pamphlets, periodicals, and newspapers helped to create what became called the “bourgeois public sphere.” Censorship increasingly became practically impossible: by the early eighteenth century there were hundreds of printers and booksellers in London alone, many operating semi-legally.

Trials for libel became political theatre — writers like John Wilkes, Daniel Defoe, and later, Thomas Paine turned prosecution into publicity, and their texts continued to be widely circulated, despite legal action by the state. Juries increasingly refused to convict in libel trials when they felt the accused was exposing government corruption or telling the truth.

Charles Fox’s Libel Act of 1792 finally gave juries the right to decide whether a publication was libellous, not just whether it had been printed – a major step toward popular control over free speech law.

Nonetheless, during the late eighteenth and early nineteenth centuries, the government continued to regard freedom of expression as risky. And so they introduced new laws which restricted free expression, such as the Seditious Meetings Act 1795, which restricted public assemblies, whilst the Treasonable and Seditious Practices Act (1795) made criticism of the Crown a felony.

However, the weight of opinion, both intellectual and popular, shifted in favour of freedom of expression both as a fundamental right and a moral good. Between 1800 and 1900, literacy rates rose from 50 percent to over 90 percent, and cheap printing, the ‘penny press’, and later the ‘half-penny press’, producing publications like the Daily Mail from 1896, created a mass reading public that no government could easily control.

Throughout the nineteenth century, prosecutions for seditious and blasphemous libel declined; by the mid-Victorian period the courts increasingly treated public discussion as socially useful.

In his 1859 work, ‘On Liberty’, John Stuart Mill wrote “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”.

Rather than threatening the established order, liberal philosophers increasingly argued that it was through disagreement and discourse that a state, and a society, improved and adapted.

There was a temporary clamp-down during the Fist World War: the Defence of the Realm Act – passed 4 days after war was declared – gave ministers extraordinary powers to suppress any speech, publication, or activity that might “endanger the success of His Majesty’s forces” or cause “disaffection” or “alarm” among the population, including pamphlets distributed by pacifists.

But finally, people power seems to have won. The 1951 European Convention on Human Rights was (finally) incorporated into domestic law in 1988 and has, since then, positioned itself at the front and centre of life in Britain. And more than the penny press, the internet means that abolishing free speech is not a very credible option.

But that does not mean that freedom of speech is an unalloyed good.

So much damage has been caused by the ‘cancel culture’ now embedded in social media and the vicious insults casually traded. In it we see a failure to understand that freedom of speech involves, or should involve, dialogue rather than threats or abuse.

On the streets, weekly demonstrations during which slogans are shouted over and over again, are hardly conducive to harmony and understanding. The more so with those slogans which obviously are meant to demand the elimination of all Jews – ‘globalise the intifada’ or ‘from the river to the sea’.

And so, paradoxically, we have increasing divisions in society as a result of our hard-won freedom of speech when it is used to browbeat others, rather than to try rationally to persuade.

5 May 2026

Paul Buckingham