A Free Speech Act for Britain

It is time to stop playing defence and go on the attack

Over the course of the last year, I have been adverse to the UK’s Ofcom in defense of my American clients. I have sent letters to Ofcom. I have had U.S. federal lawsuits served on Ofcom. I have sent hamster jokes to Ofcom. The hamster thing,  an act of eccentricity for its own sake, although I freely admit that irritating regulators is one of life’s underrated pleasures. The first of these hamsters, communicated to Ofcom in October, was mentioned in Ofcom’s federal court filings, and in our opposition brief to those filings, in the D.C. lawsuit that my co-counsel Ron Coleman and I, on behalf of 4chan and one other American website, filed to restrain the UK’s extraterritorial attempts to enforce the United Kingdom’s Online Safety Act 2023 on U.S. soil. 

We intercepted Ofcom’s enforcement letters and forwarded them to the White House. We published the lot. We responded with hamsters. When the fines became gigantic, the hamsters became gigantic too. 

Our clients’ argument was simple: the Act is an extraterritorial assault on the constitutional rights of American citizens, and Ofcom’s e-mailed demands are worth less than the paper they are written on – and worth far less than the pro bono bandwidth we have consumed in order to fight them. Hence, we may, in America, freely shred those letters and line our hamsters’ cages with the clippings free of consequence. The hamster thing is a legal joke about service of process formalities. But, unlike Ofcom’s legally worthless letters, defending the principle of free speech in America is worth paying any price. 

As a result, Ofcom has, over the course of the last year, largely halted new outbound enforcement attempts directed at American targets with no UK nexus, the U.S. Congress began preparing shield legislation, we got the first version of that shield legislation, the Wyoming GRANITE Act, passed through the Wyoming House of Representatives, and the whole world got to see what the Online Safety Act is really about. It is about censorship. 

But Americans can only stop British censorship at the American border. We cannot abolish it. That is a task for Britons, and it requires something more than editorials and panel discussions. It requires a plan, and it requires political action. 

Today the Adam Smith Institute is publishing that plan. Together with my co-authors Elijah Granet, a legal scholar of exceptional range and a meticulous legislative drafter, and Michael Reiners, a Cambridge-educated English lawyer and constitutional writer, we have produced a draft Free Speech Act for the United Kingdom. 

We offer it as a discussion paper of the Adam Smith Institute, where I have served as a Fellow since 2013 and where, in 2020, I published Sense and Sensitivity, the paper that first proposed a UK Free Speech Act and later a four-section law, the UK Free Speech Act 2021, to enshrine a US-style free speech principle, albeit one with British characteristics, into UK law. 

This model law is the full realisation of that 2020 proposal: twenty-eight clauses, six schedules, and the repeal of eight Acts of Parliament in their entirety.

We offer this model Bill not as finished legislation awaiting Royal Assent, but as a Schelling point: a concrete, detailed proposal around which Britain’s free speech reformers, and those similarly situated in Australia, New Zealand, and Canada, can organize. For too long, the cause of free expression in the Anglosphere has been fought piecemeal. A street preacher convicted here, a social media user arrested there, a comedian prosecuted for teaching his girlfriend’s pug to do something tasteless. 

What has been missing is a single document that says: “here is the alternative; here is what a free Britain or Commonwealth country would actually look like, in black-letter law, drafted to parliamentary standard. Now make your politicians adopt it.”

The Problem

Let me be very direct about the scale of the disaster that has befallen your country. The United Kingdom does not have free speech in any sense that an American would recognise. The Public Order Act 1986 criminalises speech that is merely “insulting.” Section 127 of the Communications Act 2003 makes it an offence to send a message that is “grossly offensive” – a provision so vague it could criminalise half of what is posted on the internet on any given day. Scotland’s Hate Crime and Public Order Act 2021 criminalises speech in one’s own home. And crowning the edifice is the Online Safety Act 2023, which erected a regulatory apparatus that would make a Soviet censor blush. Reporting in the Telegraph confirms that a thousand people a month are arrested under Section 127 alone – thirty a day. As I first wrote in 2016, and I say again today, the United Kingdom is not a free country. Not on speech.

What the Bill Does

Our Bill sets out to change that, root and branch. Its stated purpose is to recognise and restore the ancient liberty of free speech; to protect expression subject only to narrow and objective exceptions; and to repeal the enactments which criminalise expression by reference to offence or distress. It is a First Amendment for Britain, adapted to the British constitution, but uncompromising in its commitment to the principle that the State has no business telling free people what they may say.

Part 2 establishes the core right. Freedom of expression is declared in terms that admit of no weaselling: the right applies to expression that is popular or unpopular, offensive or inoffensive, shocking or mundane. Clause 6 declares that there is no right in law not to be offended. The subjective feelings of the listener can never, by themselves, ground criminal or civil liability. This single provision would destroy the doctrinal foundation on which most of the UK’s speech prosecutions rest.

Part 3 defines the narrow categories of expression that remain unlawful. We adopt the direct incitement test from the U.S. Supreme Court’s landmark Brandenburg v. Ohio: speech is unprotected only where it is directed to producing imminent lawless action and is likely to produce it. All UK criminal codes would, subsequently, be interpreted accordingly. General advocacy, even of illegal conduct, is protected. The Bill preserves liability for genuine threats, fraud, perjury, contempt, harassment, and national security offences. What it does not preserve is liability for being rude on the internet or expressing thoughts that are officially disfavored by the state.

Part 4 imposes duties on the State and on essential services. The State is flatly prohibited from censoring lawful expression, directly or indirectly, including the insidious practice of outsourcing censorship to private actors. The Bill bans non-crime speech monitoring, including so-called “non-crime hate incidents,” and requires the destruction of records already held. Essential service providers, being banks, payment processors, internet providers, and web hosts, are prohibited from withdrawing services on the basis of a customer’s lawful expression; no more debanking dissidents. Clause 18 imports Section 230-style civil liability protections for online platforms. And Clause 19 prohibits compelled speech: no public authority may require any person, as a condition of employment, education, or professional licensing, to declare or affirm any political, moral, or ideological belief, except of course for expressing allegiance to the Crown.

Part 5 gives the Bill teeth. Citizens can sue the State and essential service providers for breaches. The Bill amends the Employment Rights Act 1996 to make dismissal for lawful expression outside the workplace automatically unfair, and amends the Equality Act 2010 to make “lawful expression” a protected characteristic. It creates an anti-SLAPP mechanism modelled on American anti-SLAPP statutes, and reverses the burden of proof: once a claimant shows they engaged in lawful expression and suffered an adverse consequence, the interference is presumed unlawful unless the defendant proves otherwise.

Perhaps the Bill’s most radical provision is Clause 25: all convictions, cautions, and binding-over orders entered under laws repealed by this Act, where the underlying conduct would be lawful expression, are annulled. Every person convicted of a speech crime that this Bill abolishes gets a clean slate.

The Demolition

Schedule 1 is the wrecking ball. The Bill repeals the Public Order Act 1986 and 2023, each in their entirety. The Malicious Communications Act: gone. The Racial and Religious Hatred Act 2006, which has been used to prosecute ordinary political speech: gone. Scotland’s Hate Crime and Public Order Act, which criminalizes speech in the privacy of one’s own home: gone. The Online Safety Act 2023, my old nemesis: gone. Section 127 of the Communications Act, the “encouragement of terrorism” offences used to prosecute Palestine Action activista for peaceful protest, the strict-liability contempt rule: all gone. And it strikes Articles 8 and 10 from the Human Rights Act 1998, because the ECHR’s framework for “balancing” speech rights against hurt feelings is precisely the framework that got Britain into this mess in the first place. This Bill says no court may use the European Convention, or any other foreign law, to justify restrictions on expression that this Act does not permit.

Why This Bill, Why Now

When I wrote Sense and Sensitivity in 2020, the proposal for a Free Speech Act was met with warm words and no action. The intervening years have made the case for law reform unanswerable. The Online Safety Act was passed. Ofcom was set loose on the world. Scotland’s hate crime law came into force to widespread ridicule. The summer of 2024 saw fresh speech prosecutions. The current government shows no interest in reversing course, and is, in fact, accelerating. 

The Reform Party adopted a promise to enact a Free Speech Act as an amorphous manifesto commitment in 2024. Whether they adopt this bill is a matter for Reform to decide. It is easy for political parties to promise free speech in the abstract. It is, politically speaking, much harder to commit to the specific repeals that free speech requires. The test of seriousness is whether a party will look at Schedule 1 and say: “yes, we will repeal all of that.” If Reform, or any other party for that matter, will not make that commitment, then their promises on free speech in the UK are worth no more than Ofcom’s enforcement letters are worth in Connecticut. Free speech means the law should protect even unpopular or hateful speech, and even speech that your base would prefer to censor.

This Bill is offered to the British public as a benchmark and a tool for accountability. When a politician says he supports free speech, hand him this Bill and ask which clause he disagrees with. When a campaigner says reform is impossible, show him the drafting and ask what he would change.

I have spent the past decade lobbing rhetorical grenades at the UK’s censorship apparatus from my position at the Adam Smith Institute. I have represented American companies and citizens against censorship from London to Moscow to Brasilia. I quarterbacked the defence of every American target of the Online Safety Act in 2025. I sent hamster memes to Ofcom, and Ofcom has no response. But the fight I care about most is not the one being waged in American courts or across America’s borders. It is the fight for the liberty of the country where I was educated, where my ancestors came from, where most of my friends live, where my father was a citizen, and whose legal tradition I was trained in – a country that, with all my heart, I love. 

Britain deserves better than what Parliament has done to it. This Bill is how we propose to fix it.

The ball is now in Britain’s court. Pick it up.

Preston J. Byrne is a Senior Fellow of the Adam Smith Institute and Managing Partner of Byrne & Storm, P.C. He is counsel to 4chan in its federal lawsuit against Ofcom in the District of Columbia. The UK Free Speech Act 2026 discussion draft is published alongside this essay and is available for download at adamsmith.org.