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An important but often overlooked fact is that while there's no universal freedom of speech in British Law (although the UK is a member of the European conventi

by ig1 16y ago

An important but often overlooked fact is that while there's no universal freedom of speech in British Law (although the UK is a member of the European convention on human rights which has such a protection), universities specifically are required to act to protect freedom of speech of their members. The University of Cambridge is legally obliged to stand behind this research under the 1986 Education Act which states: (2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with— (a)the beliefs or views of that individual or of any member of that body; or (b)the policy or objectives of that body. Full text: http://www.legislation.gov.uk/ukpga/1986/61/section/43 http://www.legislation.gov.uk/ukpga/1986/61/section/43

cperciva 16y ago
while there's no universal freedom of speech in British Law... Perhaps not in written law, but I think you'd have a hard time convincing a judge that the British constitution does not guarantee freedom of speech. As my legal friends as fond of pointing out, an unwritten constitution has the important advantage that its words can't be twisted the way that a written constitution can.
- pyre 16y ago
  But an unwritten constitution is easier to change, because there is nothing written down to refer to as a 'base.'
  - cperciva 16y ago
    Canadian constitutional law has something called the 'living tree doctrine', which states that the constitution can grow and evolve over time, being reinterpreted in new contexts. To push the metaphor a bit further, I'd point out that a living tree is considerably more resilient than a dead tree, and is likely to adapt to conditions which might otherwise destroy it. I don't think anyone can seriously claim that the commerce clause of the US constitution was intended to grant the vast powers which it has been used to uphold; but because the US constitution is -- theoretically -- not subject to growth and reinterpretation the way that the Canadian or British constitutions are, a legal fiction has been adopted instead. If the commerce clause had been interpreted within the context of the Canadian or British constitutions, it would probably have been handled as "we're going to read one new power into this" on a number of occasions, rather than the "yes, this clause gives you the power to do everything" which seems to have occurred in the US.
    - jmaygarden 16y ago
      The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;" It's not really a matter of living versus dead trees. The US judicial system has just plainly ignored the "among the several States" caveat for the last 100 years. I'm not advocating either side of this example, by how does growing and consuming marijuana on your own property fall under regulated commerce "among the several States?" I understand it was originally banned using taxation powers (i.e. charge a stamp tax on it, but don't sell the stamps), but that pretext seems to have now been dropped.
      - jerf 16y ago
        Without endorsement, as a result of reading the recent Virginia decision on the constitutionality of the health care purchase mandate (which I mention without endorsement of either side), it has been ruled by the Supreme Court in Wickard v. Filburn (1942) [1] that the US government can regulate the act of a farmer growing wheat to feed his own chickens on the grounds that had the farmer not grown that wheat, he would have then participated in the national wheat market that Congress could regulate, that his failure to purchase wheat on this market therefore affected the market by his absence, and thereby Congress can regulate his action in accordance with the Commerce Clause. Again, I mention this without endorsement of either side; I mention this just because I only recently learned about this myself. [1]: http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn
        jmaygarden 16y ago
        That kind of ruling just turns my stomach. The court used a an enumerated power--that was primarily intended to prevent tariffs being erected between the states--to effectively remove all limits to federal power. Gonzales v. Raich (2005)[1] is analogous to the Wickard v. Filburn case that you cite. In his dissent, Justice Thomas said the following: If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce." [1]: http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich
  - oiuytuikolikuhy 16y ago
    >because there is nothing written down to refer to as a 'base Except for 1000 years of legal precedence
- bhickey 16y ago
  The Felony Treason Act 1848 is still on the books. Sure, a couple of Lords may have said that expressing anti-monarchist sentiment won't be punished, but where is the line drawn? [1] Can you be transported to Australia for poking the Duchess of Cornwall with a stick? What about shouting "Off with their heads!" at the Prince of Wales? [2] The absence of a constitutional guarantee of free speech, and the persistence of lèse majesté offenses should be a point of embarrassment. [1] http://www.guardian.co.uk/media/2003/jun/26/pressandpublishing.themonarchy http://www.guardian.co.uk/media/2003/jun/26/pressandpublishi... [2] http://thelede.blogs.nytimes.com/2010/12/09/video-of-protesters-shouting-at-prince-charles/ http://thelede.blogs.nytimes.com/2010/12/09/video-of-protest...
  - cperciva 16y ago
    Can you be transported to Australia for poking the Duchess of Cornwall with a stick? What about shouting "Off with their heads!" at the Prince of Wales? No, and no. The British constitution is not a computer program applied by an automaton; issues are decided by experienced judges who, above all else, apply common sense. (The British constitution isn't even self-consistent: The supremacy of parliament is absolute, but the 1931 Statute of Westminster places limits on that power. Constitutional scholars routinely shrug their shoulders at such matters and fall back to "well, we all know what they meant".)
    - bhickey 16y ago
      Perhaps I've been unclear. I am not alleging that English law is adjudicated by a FSM. I don't think that anyone will be convicted of Felony Treason. No one thinks that James Hewitt will be put to death under the Treason Act of 1351. This doesn't make the existence of such laws any less absurd or offensive. In the US, there seems to be a proud tradition of using archaic or seldom applied laws to harass those who fail to show deference. (For example, jaywalking as a pretext for a walking-while-black offense, or wiretapping for filming police brutality.) We might as well keep a clean house to forestall that sort of nonsense. Edit: There's also the matter of British libel law and the jurisdiction shopping that it encourages as a mechanism for harassing those who might exercise their speech rights.

by ig1 16y ago

cperciva 16y ago

while there's no universal freedom of speech in British Law... Perhaps not in written law, but I think you'd have a hard time convincing a judge that the British constitution does not guarantee freedom of speech. As my legal friends as fond of pointing out, an unwritten constitution has the important advantage that its words can't be twisted the way that a written constitution can.

pyre 16y ago
But an unwritten constitution is easier to change, because there is nothing written down to refer to as a 'base.'
- cperciva 16y ago
  Canadian constitutional law has something called the 'living tree doctrine', which states that the constitution can grow and evolve over time, being reinterpreted in new contexts. To push the metaphor a bit further, I'd point out that a living tree is considerably more resilient than a dead tree, and is likely to adapt to conditions which might otherwise destroy it. I don't think anyone can seriously claim that the commerce clause of the US constitution was intended to grant the vast powers which it has been used to uphold; but because the US constitution is -- theoretically -- not subject to growth and reinterpretation the way that the Canadian or British constitutions are, a legal fiction has been adopted instead. If the commerce clause had been interpreted within the context of the Canadian or British constitutions, it would probably have been handled as "we're going to read one new power into this" on a number of occasions, rather than the "yes, this clause gives you the power to do everything" which seems to have occurred in the US.
  - jmaygarden 16y ago
    The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;" It's not really a matter of living versus dead trees. The US judicial system has just plainly ignored the "among the several States" caveat for the last 100 years. I'm not advocating either side of this example, by how does growing and consuming marijuana on your own property fall under regulated commerce "among the several States?" I understand it was originally banned using taxation powers (i.e. charge a stamp tax on it, but don't sell the stamps), but that pretext seems to have now been dropped.
    - jerf 16y ago
      Without endorsement, as a result of reading the recent Virginia decision on the constitutionality of the health care purchase mandate (which I mention without endorsement of either side), it has been ruled by the Supreme Court in Wickard v. Filburn (1942) [1] that the US government can regulate the act of a farmer growing wheat to feed his own chickens on the grounds that had the farmer not grown that wheat, he would have then participated in the national wheat market that Congress could regulate, that his failure to purchase wheat on this market therefore affected the market by his absence, and thereby Congress can regulate his action in accordance with the Commerce Clause. Again, I mention this without endorsement of either side; I mention this just because I only recently learned about this myself. [1]: http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn
      - jmaygarden 16y ago
        That kind of ruling just turns my stomach. The court used a an enumerated power--that was primarily intended to prevent tariffs being erected between the states--to effectively remove all limits to federal power. Gonzales v. Raich (2005)[1] is analogous to the Wickard v. Filburn case that you cite. In his dissent, Justice Thomas said the following: If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce." [1]: http://en.wikipedia.org/wiki/Gonzales_v._Raich http://en.wikipedia.org/wiki/Gonzales_v._Raich
- oiuytuikolikuhy 16y ago
  >because there is nothing written down to refer to as a 'base Except for 1000 years of legal precedence
bhickey 16y ago
The Felony Treason Act 1848 is still on the books. Sure, a couple of Lords may have said that expressing anti-monarchist sentiment won't be punished, but where is the line drawn? [1] Can you be transported to Australia for poking the Duchess of Cornwall with a stick? What about shouting "Off with their heads!" at the Prince of Wales? [2] The absence of a constitutional guarantee of free speech, and the persistence of lèse majesté offenses should be a point of embarrassment. [1] http://www.guardian.co.uk/media/2003/jun/26/pressandpublishing.themonarchy http://www.guardian.co.uk/media/2003/jun/26/pressandpublishi... [2] http://thelede.blogs.nytimes.com/2010/12/09/video-of-protesters-shouting-at-prince-charles/ http://thelede.blogs.nytimes.com/2010/12/09/video-of-protest...
- cperciva 16y ago
  Can you be transported to Australia for poking the Duchess of Cornwall with a stick? What about shouting "Off with their heads!" at the Prince of Wales? No, and no. The British constitution is not a computer program applied by an automaton; issues are decided by experienced judges who, above all else, apply common sense. (The British constitution isn't even self-consistent: The supremacy of parliament is absolute, but the 1931 Statute of Westminster places limits on that power. Constitutional scholars routinely shrug their shoulders at such matters and fall back to "well, we all know what they meant".)
  - bhickey 16y ago
    Perhaps I've been unclear. I am not alleging that English law is adjudicated by a FSM. I don't think that anyone will be convicted of Felony Treason. No one thinks that James Hewitt will be put to death under the Treason Act of 1351. This doesn't make the existence of such laws any less absurd or offensive. In the US, there seems to be a proud tradition of using archaic or seldom applied laws to harass those who fail to show deference. (For example, jaywalking as a pretext for a walking-while-black offense, or wiretapping for filming police brutality.) We might as well keep a clean house to forestall that sort of nonsense. Edit: There's also the matter of British libel law and the jurisdiction shopping that it encourages as a mechanism for harassing those who might exercise their speech rights.