Kneecap are preposterous and embarrassing. They have allegedly been recorded leading crowds in chanting support for various terrorist organisations. They have also been accused of inciting violence; of calling for the death of British Members of Parliament. Earlier this week, the Metropolitan Police charged lead singer Liam Óg Ó hAnnaidh (helpfully for police form-fillers under the name Liam O’Hanna) with a terror offence after allegedly displaying a flag in support of proscribed organisation Hezbollah at a London gig.
But despite this sliding scale of offensive and even threatening speech, we should not cheer on their prosecution. Instead, we should look to the United States and how their protections of freedom of expression came not from the lofty ideas of the founding fathers, but from the often unlikely defenders of the deeply unpleasant in much more recent history.
It would be easy to just look the other way on Kneecap’s prosecution
If you are unfamiliar with the Irish language hip-hop group Kneecap, they are the group that wear balaclavas that look like they have been very kindly knitted by their mothers. In the dying days of the last Conservative government, they successfully took the then business secretary Kemi Badenoch to court after she blocked an arts grant to the group, citing their anti-British politics. At a hearing at Belfast’s high court, the Conservative government duly capitulated, saying the refusal of £14,250 in funding was “unlawful”, agreeing to release the money and pay Kneecap’s costs.
It would be easy to just look the other way on Kneecap’s prosecution; whether out of disdain, refusal to intervene as a foe is punished, or even to just enjoy the spectacle of a British government funded, anti-British performance troupe being clobbered by the British state. However, you cannot separate the system that prosecutes Kneecap for waving a bad flag from the system that prosecutes members of the public for using bad words or naughty phrases — nor do the sentences of those convicted somehow become lessened by others being punished just as severely. Lucy Connolly, the 41-year old mother currently serving two and a half years in prison for a Facebook post, is not given comfort or freedom by the prosecution of an Irish hip-hop singer. When it comes to asking the state to intervene on freedom of expression grounds, there is not a urinating and a non-urinating section of the swimming pool. When the government urinates in one end, everyone is swimming in urine.
As a country, the only way that we can extricate ourselves from our current predicament of absurd curtailments of liberty of expression is by taking daily steps in the direction of something strongly resembling the United States of America’s First Amendment protections as they currently apply. And to understand how Britain could arrive at a similar attitude towards freedom of expression, we need to understand that the current interpretation of the First Amendment is quite a recent one, and one that relied on defending liberty for the unseemly, the seditious, the hateful, and even those calling for others’ liberty to be curtailed.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Given current tub thumping about American freedom of speech, one would be forgiven for imagining that the broad application of this entreaty was something that had been part of the American story from its independence and founding. But until the 1960s, US treatment of speech had little difference with the UK. An excellent piece in Pimlico Journal explains this at length, but to give a broad brush outline, the legal culture of the treatment of speech was one that was largely inherited from the English common law.
In the Laws of England, published in 1760 and almost certainly familiar to the lawyers that dominated the founding fathers of America, Sir William Blackstone summed up press freedom as:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity… Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.
It was very much in this culture and tradition that both America and Britain continued to operate — a culture of speech that could be limited where it strayed into sedition, into blasphemy, into obscenity. Indeed, a culture in which a theatre troupe such as Kneecap, calling for acts of violence and waving the flag of an enemy organisation, would likely be prosecuted.
Through the growth of the United States as a nation, through the nineteenth century, Britain and America remained on a very similar path — one might occasionally stray into more restrictive practices, such as the suspension of press freedom during the American Civil War, but they remained heading in the same direction.
Both countries suspended press freedom in the First World War. In Britain the Defence of the Realm Act 1914 give broad powers to limit press freedom, while the Espionage Act, passed by Congress in June 1917 just two months after the US formally declared war, made it a crime to “willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military … [or] wilfully obstruct the recruitment or enlistment service of the United States.”
However, it was in the legal challenges to the Espionage Act that we see a foreshadowing of what would ultimately drive the divergence between Britain and America and push the latter towards the defence of free speech that we know today.
While the US Supreme Court held in Abrams v United States that: “The First Amendment does not protect speech that is designed to undermine the United States in war by fueling sedition and disorder,” there was a dissenting opinion from a highly unlikely source. Supreme Court Justice Oliver Wendell Holmes Jr had been a lifelong sceptic, and had disdained individual freedoms. In Schenck v. United States, Holmes famously declared that the First Amendment would not protect a person “falsely shouting fire in a theatre and causing a panic”, and upheld the view that if speech is intended to result in a crime, and there is a clear and present danger that it actually will result in a crime, the First Amendment does not protect the speaker from government action. Once again, no get out for Kneecap, no get out for Lucy Connolly.
But in an extraordinary change of heart — perhaps stemming from Zechariah Chafee’s article “Freedom of Speech in War Times” which had criticised the Schenck judgement — Holmes declared: “when men have realized that time has upset many fighting faiths, they may come to believe… that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment”. The majority decision held that clear-and-present-danger formulation of Schenck should be maintained, but Holmes’ newfound support for free speech absolutism would be taken up by another champion in similarly unlikely circumstances.
In the summer of 1964, Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, invited a Cincinnati TV reporter to cover a KKK rally in Hamilton County. The filmed rally showed men in robes and hoods, some armed, burning a cross and delivering speeches. In one speech, Brandenburg proclaimed that “We’re not a revengent organization,” and that “if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” In another speech, he called for forcibly deporting blacks to Africa and Jews to Israel. The “revengent” comments at first attracted mockery, but when the mutilated dead bodies of black civil rights activist James Earl Chaney and two Jewish activists named Michael Schwerner and Andrew Goodman were discovered, Brandenburg was arrested and charged with advocating violence under Ohio’s criminal syndicalism statute for his participation in the rally and for his speech.
In not dissimilar terms to the Terrorism Act under which the alleged Kneecap flag waver has been charged, the statute proscribed: “advocating … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembling with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”.
Upon conviction by the county court, Brandenburg was fined $1,000 and sentenced to one to ten years in prison. On appeal, the Ohio First District Court of Appeal affirmed Brandenburg’s conviction, throwing out his challenge that the criminal syndicalism statute violated his First Amendment right to freedom of speech and that the Ohio state law in turn abridged his privileges and so violating the Fourteenth Amendment. The Supreme Court of Ohio dismissed his appeal without opinion.
When the now-bankrupt, unemployed and unemployable Brandenburg was offered the assistance of the ACLU pro-bono to take the case to the Supreme Court, he accepted. At which point his case was taken on by a forty-eight-year-old Jewish ACLU volunteer named Allen Brown.
While on the face of it an unlikely defender of a Klu Klux Klansman, Brown was a free speech absolutist. Acting in an obscenity case, it was said that Brown picked up a giant dildo brought into court as evidence by the prosecution, and brandished it in the face of jurors, appealing to them that “This may disgust me, and this may disgust you. But it is not obscene.” Joining him on the defence team was a thirty-two-year-old African American attorney named Eleanor Holmes Norton (now a US Congresswoman). Norton had acted as legal council to Freedom Summer, the group of which the three murder victims had been a member — when interviewed, she quite reasonably stated: “If you look closely at the color of my skin and the texture of my hair, you will see that I could only be in this for the principles involved. Self-interest becomes an absurdity.”
The US Supreme Court reversed Brandenburg’s conviction under the Ohio law, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was per curiam — issued from the Court as an institution, rather than as authored and signed by an individual justice.
This was a watershed moment in American free speech
The per curiam majority opinion struck down the Ohio Criminal Syndicalism statute, overruled Whitney v. California (The 1927 case that upheld that “despite the First Amendment, a state can use its police power to punish speech that undermines the public welfare by inciting criminal activity”), and articulated a new test — that of “imminent lawless action”:
Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, … These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
This was a watershed moment in American free speech, one that defined the current system under which the United States currently enjoys the highest protections for liberty of expression. But it is important that those of us in Britain who desire to achieve American first amendment levels of free speech protections learn a lesson from this story of US divergence. This was not an issue settled centuries ago, it was a changing of the status quo in living memory. It was not done overnight, but by principled persistence through decades. And it was done by people prepared to defend the freedom of speech of much more unpleasant people than the very silly Kneecap.
