In Trump v. United States, the presidential immunity case, the US Supreme Court decided only a small point of law (albeit, a point of law which may turn out to have significant political consequences). The small point of law is that presidents are immune from criminal liability in respect to their official actions. That immunity may be either absolute or it may be presumptive. It is absolute in respect of the president’s exclusive competence; it is presumptive in respect to the president’s other official competences. Presidents are not immune from criminal liability in respect of their personal actions, even personal actions undertaken whilst in office.

The reaction to this ruling, both in the dissenting opinion of Justice Sonia Sotomayor and in the reported remarks of President Biden, was outspoken. The president is now “a king above the law,” Sotomayor claimed. President Biden said that the American nation was “founded on the principle that there are no kings” in the country. “No one is above the law,” he said, yet the decision of the court means “there are virtually no limits on what a president may do.”

These sorts of remarks are doubly mistaken. They misstate the very limited nature of the court’s ruling in Trump v. US, and they misunderstand the constitutional position of kings.

Political actors, whether they obtain office by inheriting it or by being elected to it, may be held to constitutional account in all sorts of ways. In neither the United Kingdom nor the United States is it assumed that the principal method of accountability will be via the courts of law, still less via the criminal courts. In the US Constitution, the president is first and foremost accountable via the ballot box. Once in office, he is primarily accountable not to the judiciary but to the other “political” branch, Congress. It is for Congress to decide whether and how to fund the federal executive that the president leads, and it is for Congress to decide whether to confirm in office the president’s nominees. It is also for Congress to decide whether to pass legislation that accords with—or diverges from—the president’s political priorities and preferences. Nothing in the court’s decision in Trump v. US undermines or undercuts any of these crucial constitutional means whereby presidential power is held to account.

In extremis, it is not to the criminal courts that the US Constitution imagines we should turn in the event of presidential “high crimes and misdemeanors,” but to the extraordinary process of impeachment. Under this process, charges are brought by the House of Representatives and placed before the Senate, which will conduct a trial. Conviction requires a two-thirds majority. For an impeachment trial of a president, the Chief Justice of the United States presides. This is the principal formal means by which the US Constitution holds the executive to account and, once again, nothing in the court’s decision in Trump v. US undermines or undercuts the process of impeachment in any way. Moreover, the criminal indictment in Trump v. US related precisely to events in respect of which President Trump had already faced trial for impeachment (the Senate acquitted him in February 2021). In other words, former President Trump had already been held to constitutional account for the actions that lay at the heart of the indictment in this case. Far from being “above the law,” the former president had been subject to the full force of the law.

Justice Sotomayor and President Biden invite us to compare the constitutional accountability of presidents with that of kings. So let us take up their invitation and do so—because the comparison is instructive. Contrary to popular mythology, kings (and queens) have never been unaccountable. Assuredly, what we mean by accountability has changed radically over the ages. We no longer think of it in either military or religious terms, but in constitutional and secular terms.

Nonetheless, it is worth recalling that in medieval England, kings were accountable principally on the battlefield. They ruled quite literally by the sword—and by the sword they could likewise fall. Once upon a time they really were commanders-in-chief. Thus, Richard II in 1399 lost his crown to Henry IV through force of arms. During the Wars of the Roses in the following century the crown moved from the House of Lancaster to the House of York and back again according not to heredity but to victory in battle. The Tudors came to the throne in 1485 because Henry VII’s forces defeated Richard III at the Battle of Bosworth. (The most dramatic account of this saga, if not always the most accurate, may be found, of course, in Shakespeare’s history plays.)

The first Stuart king of England (James I) claimed that he ruled by “divine right” and was accountable only to God and to no man or institution on earth. But this was anathema. The Stuart theory, never accepted by the English, was decisively disproved when James’ son (Charles I) lost his head at the end of the Civil War (in 1649). When the monarchy was restored eleven years later it was clear that kings and queens would rule subject to Parliament’s will and according to Parliament’s laws. John Locke gave an authoritative voice to the thinking in his Second Treatise of Government (1690) and by the time Sir William Blackstone came to write his Commentaries on the Laws of England (1765) it was firmly established orthodoxy, accepted by Whigs and Tories alike.

It’s true that Blackstone said, “The king can do no wrong.” It’s also true that a great many people, from Publius in Federalist #69 and #70 to Sotomayor and Biden in 2024, have taken that as their starting point for assuming that the opposite must be true for presidents—because presidents, whatever they are, are most emphatically not kings. But this is the danger of taking a single maxim out of context, for Blackstone carefully explained what he meant. The rule “the king can do no wrong” does not mean that whatever the king does is lawful; still less that there can be no constitutional sanction were the king to exceed or abuse his powers. Rather, it means two things: first, that constitutional wrongdoing cannot be imputed to the king but must be imputed instead to his counsellors. And, second, that the king has no power to do wrong to his subjects.

Far from being beyond the reach of constitutional accountability, the history of England makes it abundantly clear that Parliament can, and if necessary will, remove a king who overreaches his authority.

Since Elizabeth I’s reign in the sixteenth century, the story of Britain’s constitution has been the struggle to hold royal—or executive—authority to account. Overwhelmingly this has been a parliamentary struggle. In the UK, we have not imagined that the law will be the primary means whereby power will be held to account (least of all the criminal law). Rather, we have imagined—just as the American founders did—that this is a task for a political branch. In the UK, we have done it via two routes. First, we have simply reduced the powers of the monarch, transferring them to ministers. In this sense, that the king can do no wrong has ceased to matter: it is ministers who exercise power, not the monarch, and the British constitution has never known any maxim that “ministers may do no wrong.”

In addition, we have insisted that the Crown’s ministers are not merely accountable to Parliament but are drawn directly from Parliament. The king does not choose who his prime minister is: the parliamentary process determines who the prime minister is (as we have just seen, with Sir Keir Starmer’s arrival at 10 Downing Street).

Whilst it may formerly have been for the king (or queen) to make treaties or to declare war, these are now tasks for the prime minister and his senior ministerial colleagues in Cabinet. Those ministers are members of the House of Commons and, in order to govern, they require the confidence of the House of Commons. Such confidence can be withdrawn at any moment and, once that happens, the government falls. This is how constitutional accountability works in modern Britain (it is, for example, precisely how Boris Johnson fell as prime minister in 2022).

It is not so very different in the United States. Whilst it is true that no president requires the confidence of either the Senate or the House to remain in office, Congress enjoys a broad array of powers to hold the federal executive to account. In extremis, it may impeach. Short of that it may withhold funding, withhold consent for nominees for office, or legislate so as to frustrate the president’s ambitions. These are the constitutional devices, carefully and deliberately set out in the US Constitution by its Founding Fathers, which provide for constitutional accountability in the United States. Nothing in the Supreme Court’s decision in Trump v. US does anything to disturb any of that. The constitutional allocation of power, and the constitutional means whereby power is held to account, remain precisely as they were.

The question is not, “Are presidents (or kings) above the law?” The question is, “Are they above the constitution?” And the answer is now—as it has been for centuries—a decisive and emphatic, “No.”

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Swift came of age as the English finally did away with the prior restraints that had inhibited and curtailed the press since its invention in the late Middle Ages. Famously, the Licensing Act was allowed to lapse in England in 1695 (the year in which Swift was ordained as a priest in the Anglican church). For the first time, the press was uncensored. This did not mean that writers were suddenly free to print whatever they pleased. Work that was hostile to the authorities or critical of the government would attract the attention of criminal law, with prosecutors being quick to charge writers, printers, and publishers alike with the offence of seditious libel. Those convicted would be sentenced to stand in the pillory. Swift, despite his brilliantly biting satire, managed somehow to avoid this fate, even if a number of his near contemporaries were not so fortunate. Daniel Defoe, for example, was pilloried.

Actions for seditious libel, however, were taken in the courts after the event—after the offending material had already been published. From 1695 on, the press did not have to seek anyone’s permission—anyone’s licence—before it went to print. David Hume was far from alone in celebrating this advance as if it meant Great Britain was the freest country in Europe: “Nothing is more apt to surprise a foreigner,” he boasted, “than the extreme liberty, which we enjoy in this country, of communicating whatever we please to the public.” 

Writing in a similar vein in the 1760s, the great English jurist Sir William Blackstone, in his Commentaries on the Laws of England, opined that:

The liberty of the press is … 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.

Blackstone continued as follows:

to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

If that is what passed for freedom of speech in the eighteenth century, our standards today are more exacting. Under the First Amendment to the US Constitution, for example, Congress shall make no law abridging the freedom of speech. Only the narrowest range of exceptions is permitted. Speech so violent it amounts to “fighting words,” speech that is obscene, or speech that is defamatory may be silenced, but the US Supreme Court has worked hard since at least the 1960s to ensure that these exceptions are drawn as tightly as possible.

Not so for Blackstone. In his conclusions on the topic, Blackstone quotes approvingly an unnamed “fine writer on this subject,” who says that “a man may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.” That is, even if in the 1760s the law no longer worried all that much about what men thought (within the privacy of their minds), once they started making their views known to the public, they had better be sure that what they were saying was wholesome and not noxious. Blackstone does not identify who his “fine writer” was. But it is Jonathan Swift—the quotation is from Gulliver’s Travels (1726).

Two of Swift’s earlier works, The Battle of the Books and A Tale of the Tub, published together in 1704 but written in the mid-1690s, gave voice to concerns about the implications for free speech which were to stay with him for much of his career, including in his masterpiece, Gulliver’s Travels. The Battle of the Books is ostensibly a fable about the ancients and the moderns. A Tale of the Tub is a complex piece of literary, political, and religious satire, more or less impossible to categorise but which, in the main, may be read as an allegorical parable about the development of Christianity in Europe. Both pieces contain a range of prefaces, introductions, letters dedicatory, and digressions, in which Swift takes aim at the proliferation of “Grub Street” scribblers whose inferior works, after the lapsing of the Licensing Act, were pouring in his view all too freely from the London presses.

In The Battle of the Books, he writes that:

ink is the great missive weapon in all battles of the learned, which, conveyed through a sort of engine called a quill, infinite numbers of these are darted at the enemy by the valiant on each side, with equal skill and violence, as if it were an engagement of porcupines.

He imagines a character, representing Criticism, with her parents Ignorance and Pride sitting on either side of her. Alongside them is her sister Opinion, “light of foot, hoodwinked, and headstrong, yet giddy and perpetually turning.” In front of them play her children, Noise and Impudence, Dullness and Vanity, Pedantry and Ill-Manners. Criticism explains that:

Tis I who give wisdom to infants and idiots; by me, children grow wiser than their parents; by me, beaux become politicians, and schoolboys judges of philosophy; by me, sophisters debate and conclude upon the depths of knowledge; and coffeehouse wits, instinct by me, can correct an author’s style and display his minutest errors without understanding a syllable of his matter or his language.

In an unlicensed age, any fool can be a critic. Anyone can pick up a pen. Everyone has an opinion, no matter how hoodwinked or headstrong. And, to cap it all, everyone has a megaphone.

The humour of Swift’s style should not obscure the seriousness of his point. He was appalled by what he read. As one commentator has put it, the end of licensing had created a “cultural swamp” in which “imaginations did not so much soar as sink” and where prose lacked all form, “like bilge.” The same is said now not of Grub Street but of social media. Twitter and its ilk are a swamp, in which bilge drowns out truth, and where the noise is both endless and endlessly misleading. Falsehood speeds around the globe while the truth is still tying up its bootstraps.

Swift had a deeper point. For it was not just the “literary mediocrity” of Grub Street that irritated him: it was also that the new fashion for free speech was based on a profound error and that its consequences were likely to be highly dangerous. The error, in Swift’s view, was to imagine that what went for freedom of conscience should go likewise for freedom of speech.

Swift, as we have noted, was an Anglican—a theologian, an ordained priest, and, for thirty years, Dean of St Patrick’s in Dublin. He understood conscience to mean the “liberty of knowing our own thoughts,” a liberty ”no one can take from us.” Conscience, as such, was wholly internal—it “properly signifies that knowledge which a man hath within himself of his own thoughts.” Swift was opposed entirely to the ”quite different” meaning which, in his day, conscience had come to acquire:

Liberty of Conscience is nowadays not only understood to be the liberty of believing what men please, but also of endeavouring to propagate the belief as much as they can and to overthrow the faith which the laws have already established, to be rewarded by the public for those wicked endeavours.

This, he said, was the view of “fanatics” who, moreover, show not the slightest ”public spirit or tenderness” to those who disagree with them.

The expansion of liberty of conscience into freedom of speech was not only an error for Swift: it was perilous. In particular, it was hazardous to public order and the established authority of church and state. This was the danger Swift alluded to in his preface to A Tale of the Tub, where he refers to “the wits of the present age being so very numerous and penetrating, it seems the grandees of Church and State begin to fall under horrible apprehensions.” Swift was aghast that the slightest murmur against a minister of the Crown could lead directly to the pillory, whereas displaying “your utmost rhetoric against mankind,” telling them “we are all gone astray,” was regarded as the benign delivery of ”precious and useful truths” no matter how destabilising it was to peace, order, and good government.

If these views were Tory in character, it did not follow that Swift thought the state could or should return to the old ways of suppression. Swift knew which way the tide was flowing and he was more than astute enough to realise that any official attempt to obstruct it would be futile. When he urged his friend, the editor of the Tatler magazine “to make use of your authority as Censor, and by an annual index expurgatorius expunge all words and phrases that are offensive to good sense, and condemn those barbarous mutilations of vowels and syllables,” he knew full well it was never going to happen.

The genie was out of the bottle, and there was no putting it back. The power of the genie—the power of free speech—may be liberating. But it could also wreak havoc, bringing with it its handmaidens: criticism, ignorance, pride, and, worst of all, ill-formed opinion. Freedom had come at a price, and Swift spent many a long year wondering whether it had been a price worth paying. In Book II of Gulliver’s Travels, Swift has the King of Brobdingnag tell Gulliver that:

he knew no reason, why those who entertain opinions prejudicial to the public, should be obliged to change, or should not be obliged to conceal them. And, as it was tyranny in any government to require the first, so it was weakness not to enforce the second.

This is why “a man may be allowed to keep poisons in his closet, but not to vend them about as cordials.”

Swift was far from alone in his time in thinking this out loud. We have seen that he had Sir William Blackstone for company. Likewise, he had Samuel Johnson. Consider what Dr Johnson has to say, for example, in his Lives of the Poets (1779), about Milton’s great seventeenth-century tract against censorship, Areopagitica:

The danger of such unbounded liberty, and the danger of bounding it, have produced a problem in the science of Government, which human understanding seems hitherto unable to solve. If nothing may be published but what civil authority shall have previously approved, power must always be the standard of truth; if every dreamer of innovations may propagate his projects, there can be no settlement; if every murmurer at government may diffuse discontent, there can be no peace; and if every sceptic in theology may teach his follies, there can be no religion. The remedy against these evils is to punish the authors; for it is yet allowed that every society may punish, though not prevent, the publication of opinions, which that society shall think pernicious; but this punishment, though it may crush the author, promotes the book; and it seems not more reasonable to leave the right of printing unrestrained, because writers may be afterwards censured, than it would be to sleep with doors unbolted, because by our laws we can hang a thief.

Johnson is clear in this passage—as he was elsewhere in his work—that, if we are a society that seeks truth, we cannot have pre-publication state censorship, for censorship collapses truth into power. But, at the same time, the absence of licensing causes harms of its own—harms to settled authority, harms to public order, and harms to religious authority, too. Hence the need to retain causes of legal action that can be taken against authors whose work is seditious. And yet, as Johnson surmises, this does not always work. For one thing, going after a book that is seditious may serve only to amplify that book’s ability to broadcast its message and, for another, it is no more logical than encouraging a burglar to steal your possessions knowing that you can take legal action against him after he has done so. For Johnson, these appear to be problems of good governance that admit of no solution. If we want free speech, we will just have to put up with its vices, its drawbacks, and its inconveniences, fake news and disinformation included.

That is not a new conclusion, even as the technologies of communication evolve. On the contrary, clear-sighted thinkers have understood it ever since it was first set out by Jonathan Swift.

The post The Threat of Free Speech, Yesterday and Today appeared first on Law & Liberty.

The US Supreme Court has determined that, for the time being, some of these issues should be left for the political branches (physician-assisted suicide and, since Dobbs, abortion) whereas others are required to be understood as constitutional rights for the federal courts to determine (gun control and, for now at least, same-sex marriage). In the United Kingdom, by contrast, all four of these matters are controlled by legislation—none has been determined by a judicial ruling. Thus, same-sex marriage is permitted because our parliaments have legislated for it; abortion is permitted to the extent and for the reasons that Parliament has decreed in legislation; gun control is likewise a matter of statutory regulation; and, unlike in Canada (where the Supreme Court ruled in 2015 that the then criminalization of assisted suicide was in breach of the Canadian Charter of Rights and Freedoms), the courts in the UK have thus far been content to leave assisted suicide to legislative judgment. Our parliaments, to date, have voted to reject proposals to amend its criminalization.

Two things strike me when I read the US Supreme Court’s ample case law on these topics. The first is its rampant and manifest inconsistency. The second is its understanding of what is at stake. I’ll come to that in a moment, but first, let me address the point about inconsistency.

In 1997, the Court was invited to rule that state prohibitions making physician-assisted suicide unlawful are in breach of the Fourteenth Amendment (which provides, of course, that “No State shall … deprive any person of life, liberty, or property, without due process of law.”). In Washington v. Glucksberg, the Court declined the invitation, ruling that the asserted right (to assisted suicide) could not be read as falling within the scope of the fundamental rights and liberties protected by the Fourteenth Amendment. That some aspects of privacy and personal autonomy had been found to fall within the Constitution’s safeguarding of “life, liberty, or property” did not mean that all “important, intimate, and personal decisions are so protected,” the Court ruled. In concluding his Opinion for the Court, Chief Justice Rehnquist noted: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Exactly 18 years (to the day) later, the Supreme Court was invited to rule that states which declined to license or recognise same-sex marriage were acting in breach of the Fourteenth Amendment. At the time of the decision, in Obergefell v. Hodges, eleven states and the District of Columbia had amended their laws to recognise same-sex marriage. The others had not or, at any rate, had not yet done so. What Rehnquist said of ongoing political debates about assisted suicide in 1997 was every bit as true 18 years later about debates on same-sex marriage: throughout the nation, debate was earnestly and profoundly engaged, just as it should be in a democratic society.

Yet, by the barest majority, the Court put a unilateral and immediate stop to all that by removing the matter from what it called “the vicissitudes of political controversy,” holding that the matter was not one for the democratic process at all. Instead, it was a matter of fundamental right. As such, its fate would depend on the “vicissitudes” of a majority of nine Justices, rather than on the outcome of democratic elections to representative legislatures. Marriage is no more mentioned in the Constitution than assisted suicide is, yet for the majority in Obergefell, the right to marry was so “deeply rooted” in American “history and tradition,” so “implicit in the concept of ordered liberty,” that the Fourteenth Amendment’s promise of neither liberty nor equality could be safeguarded unless and until the states were commandeered to accept that couples must be allowed to marry irrespective of their sex or gender.

Now, I am in no doubt that there are certain matters which genuinely are so important to human flourishing that they need to be protected in law from the whims—and tyrannies—of majorities. But where those matters are not expressly enshrined in clear legal text, we need to be extremely careful before using our powers of interpretation to imply that they need protection as if they were. That care was evident in Glucksberg but sorely missing in Obergefell. As it happens, I’m in favour of same-sex marriage. If I were an elected representative voting on it as a matter of legislative policy, I’d enthusiastically vote for it. If I were a citizen, voting in a referendum on the matter, I’d endorse it. But I have no sympathy with the majority judgment in Obergefell. That judgment was a power grab, informed not by the majority’s view of what either the Constitution or the law required, but by the majority Justices’ personal policy preferences.

In Dobbs, Justice Alito, writing for the Court, said that “Roe was egregiously wrong from the start,” that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives” and that the Court should always be on its guard against “freewheeling judicial policymaking.” Well, Obergefell was also wrong from the start; the matter should never have been regarded as being for anyone other than the people and their elected representatives; and to pretend otherwise is, I’m afraid, to descend into nothing more than freewheeling judicial policymaking.

What is at stake when a constitution—or a court—decides that an issue should be left for the political branches to regulate, rather than being determined by a court of law? A feature of American jurisprudence, at least when viewed from the other side of Atlantic, is the impression it often gives that what is at stake is a zero-sum game. Either a matter is for the vicissitudes of politics, or it is a matter for the court to rule on. It’s rarely both. British and European jurisprudence on fundamental rights, by contrast, tends not to be so black and white. In the United Kingdom, courts will often say that responsibility for ensuring that rights are upheld is a joint enterprise—a constitutional task judges share with the political branches.

Let me give just two examples, before returning to the US case law. In the UK Supreme Court’s leading case on assisted suicide, a majority ruled that Parliament’s legislative judgment (that assisting in someone else’s suicide should continue to be a crime) should be upheld despite its self-evident incursion into personal autonomy precisely because Parliament had kept the matter under active consideration and was likely to continue to do so. Moreover, the record showed that, in considering the matter, Parliament did so in the light of (and not in ignorance of) the competing rights at stake. The court was respectful of and accordingly gave weight to the fact that Parliament had judged the matter in a certain way and, indeed, had done so expressly with reference to the right to life, the right to privacy, and the right to bodily autonomy.

The same is true for the respect—and the weight—the UK’s law lords gave to Parliament’s legislative judgment on how political advertising should be regulated in the UK’s broadcast media. Parliament and court alike knew and understood that this was a matter that more than touches on the right to freedom of expression. It goes to the very heart of free speech. Even if there is a case that the UK’s extensive statutory regulation of political advertising curtails free speech too much, that case was not permitted to prevail in court because the judges were mindful that Parliament had considered the matter both carefully and thoroughly and, moreover, had done so fully cognisant of the importance of free speech. Having considered the matter in this way, Parliament concluded that it was necessary and in the public interest to impose certain restrictions on political advertising in the broadcast media and the court saw no reason to disturb, interfere with, or overturn that judgement. In a sense, the court believed its job was to ensure that the decision to regulate political broadcasting had been taken fairly, reasonably, and in the light of the free speech concerns (which it had been), rather than believing its job was to decide the issue for itself.

The contrast between this nuanced judgment and the much more militant, even absolutist, approach taken by the US Supreme Court in its equivalent case law (the infamous Citizens United case) is obvious. For the US Supreme Court, it did not matter a damn that Congress had deliberated with extraordinary care and attention in seeking to reach bipartisan agreement on campaign finance laws. “Congress shall make no law … abridging the freedom of speech”—no law at all—and that, for the Court, was that. Now, of course, it is true that the First Amendment’s protection for free speech is crafted in absolute terms, but it is also true that what is meant by “speech” is left undefined. In Citizens United, it was simply assumed that corporate spending is speech. Why can’t the enquiry as to what should be included within the scope of the First Amendment’s protection not be shared between the courts and the elected branches (as it would be in Britain and Europe)? What, beyond naked judicial assertion, makes it a matter for the courts alone?

That same zero-sum approach the majority exhibited in Citizens United can be seen also in the Court’s most recent gun-control cases. In District of Columbia v. Heller, there was no doubt that the DC legislature had enacted restrictions on the possession of handguns in order to address and combat the use of such firearms in the commission of crime. There was likewise no doubt that the District had a legitimate, indeed, compelling, interest in seeking to save lives. But it was only the dissent that sought to balance or weigh these factors against the Second Amendment’s right to bear arms. The majority of Justices in Heller saw that right not as something to be measured against the public interest, but as a trump card, to be deployed to flatten the District’s legislation no matter how fair, reasonable, or balanced it may otherwise appear.

So too in last year’s Supreme Court decision in New York State Rifle & Pistol Association: Justice Breyer’s dissent in that case repays close attention. He noted that, in 2020, more than 45,000 Americans were killed by firearms. He noted, too, that many Americans use firearms for perfectly legitimate purposes, including sport, certain types of employment, and self-defence. And he then said this: “Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies. … It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns … legislative work.” In short, “the question of firearm regulation presents a complex problem—one which should be solved by legislatures rather than courts.”

This is how rights are generally understood in Britain and Europe. Only very rarely are they trump cards, capable of defeating whatever hand the government is playing, no matter how strong its position or reasonable its argument. If you don’t like the moves the government is making, elect a different one. In democracies, we may reasonably disagree about such matters as same-sex marriage, abortion, gun control, and physician-assisted suicide. In democracies, our disagreements are best addressed and resolved through the democratic process. An understanding of basic rights should no doubt guide and shine a searching light on our debates, deliberations, and disagreements. And, of course, to say this places a great burden on our legislatures, which they may not always be able or willing to shoulder—sometimes it suits weak lawmakers all too easily to leave the difficult matter of adjudicating on the limits of our rights to the courts and the judges. But to use such rights as a means of closing down debate is rarely if ever the way to go, not least when all that achieves is to reallocate decision-making power from the vicissitudes of the ballot box to the vicissitudes of whoever for the time being can command a majority of votes on a Supreme Court.

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Fast forward to the present day. Two months ago it was reported that a very well-known BBC TV presenter was under investigation for having allegedly made substantial payments to a young teenager in exchange for sexually explicit photographs of the child. If the allegations are true, it is likely that a serious criminal offence has been committed. The story was the lead news item in the UK for a whole week. The presenter’s identity was widely known in press circles and was the subject of a great deal of speculation on social media. Several BBC TV presenters found themselves under siege and had to issue exculpating statements, specifying that they themselves were not the subject of the story. After five excruciating days, the presenter’s family finally owned up, and his identity was revealed—it was Huw Edwards, the BBC’s lead anchor on its news and current affairs programmes, the man who last year broke the news to the nation that Her Majesty the Queen had died. He was one of the most trusted journalists in the country. 

The press did not reveal Edwards’ identity because they feared that, had they done so, he would have sued and obtained significant sums from them in damages. Unlike in the 1990s, British courts now recognise and enforce what they call a “reasonable expectation of privacy.” Even if a press story is true, the media in the UK will now be liable in damages for publishing or broadcasting it, if it is deemed an invasion of privacy. If the law was wrong in the 1990s not to afford poor Gordon Kaye a remedy, the law in the UK has now swung too far the other way. It has become such a constraint on press freedom that the media chill their own speech—as they did when they decided en masse to keep Huw Edwards’ name under wraps. 

The relationship between speech and privacy is not a new problem, and the press laws of both England and the United States have long struggled to get it right. But a solution is available, if only the courts choose to adopt it. The solution requires us to understand that there are competing interests at stake here—competing rights—and that justice requires both free speech and the right to privacy to be held in balance. If the law gives too much weight to speech interests, ignoring privacy concerns, it leads to injustice (as Kaye found). But the reverse is also true: if the law gives too much weight to privacy concerns—ignoring the importance of the right to freedom of speech—this too is unjust. 

British and American laws on the matter of “speech versus privacy” may look as though they are quite different from one another. The United States has its First Amendment, after all, of which there is no direct equivalent in the UK, and English law relies (in this area as in so many others) on a mix of common law and statute, rather than on the fixed provisions of a written constitution. But the differences are more apparent than real, for the substance of the law in both countries has the same root. 

The Great Bulwark of Liberty

That root lies deep in the eighteenth century. Since the invention of the printing press in the late Middle Ages, the English Crown had assumed (and the law had accordingly granted) a prerogative power to license the press. Nothing could be lawfully published without a permit. Milton railed against the censorship of the licensing regime in his great tract on the liberty of the press, Areopagitica (1644). But the regime survived until 1695 when John Locke helped persuade the House of Commons that it was unlawful as being in restraint of trade. (It is typical of the common law that Locke’s argument, based on commercial freedom, achieved success, whereas Milton’s, based on freedom of conscience, had failed.) The lapsing of the Licensing Act in 1695 did not mean that the press in England was all of a sudden free. On the contrary, the government continued both to possess and to exercise numerous powers to control the press, the most important of which was the common law of seditious libel. If you criticised, or even satirised, the government, you were liable to be prosecuted for what you had written and, if convicted, you could find yourself pilloried—your head and hands locked in the stocks for the assembled crowd to ridicule you. 

By the middle of the eighteenth century, it was not just seditious libel that authors (and their printers and publishers) had to be mindful of. The law of blasphemy protected religious sensibilities. Common law libel protected individual reputation. An emerging law of obscenity protected what writers from David Hume to Jane Austen understood by delicacy and taste, politeness and manners. Blackstone, in his Commentaries on the Laws of England (1765–69) offered the authoritative exposition of the law. None of these legal actions inhibited the liberty of the press, he intoned. As there was no licensing of the press, there was no pre-publication censorship. Therefore the press was free. If, however, something “improper, mischievous or illegal” were to be published, the writer “must take the consequence of his own temerity.” Such an approach, Blackstone opined, was “necessary for the preservation of peace and good order, of government and religion” which, in the great jurist’s estimation, were “the only solid foundations of civil liberty.” 

This was the orthodoxy which, across the Atlantic, the Founders imbibed. Yes, freedom of speech may be “the great bulwark of liberty” (a line which Madison copied and pasted from Trenchard and Gordon’s Cato’s Letters, written nearly half a century before Blackstone), but this freedom was understood just as Blackstone had perceived it. The press was free in the sense that it was unlicensed, not in the sense that the papers were at liberty to print whatever they wanted without threat of legal consequence. In her recent book Seek and Hide: The Tangled History of the Right to Privacy, Tulane law professor Amy Gajda has shown how American lawyers from Alexander Hamilton in the first decade of the nineteenth century to Louis Brandeis and Oliver Wendell Holmes in its last decade understood that press freedom was concerned with protecting “good motives and justifiable ends” (Hamilton) and not with “gossip” that “belittled and perverted” (Brandeis). 

Throughout the Anglosphere, the single most authoritative voice in this debate is neither Blackstone’s, nor Madison’s or Hamilton’s, not even Brandeis’s or Holmes’s. It is John Stuart Mill’s. His tract, On Liberty (1859) is the finest essay ever written in English on free speech, surpassing both Areopagitica and Cato’s Letters. Mill argued that the “only purpose” for “interfering with the liberty” of an individual is “to prevent harm to others.” We must, all of us, be free to speak whatever and however we wish, as long as our words do no harm to others. If we are speaking badly, so be it. If we are speaking contrary to the public good, so be it. If we are speaking unwisely, or even wrongly, so be it. The remedy, in each of these cases, is not to silence the speaker, but to speak back. In Mill’s words, these are all good reasons for “remonstrating with … persuading … or entreating” the speaker, but never for “compelling” the speaker to stop. 

This, broadly, is the approach both British and American law take to free speech now, even if the law in each country sometimes reaches different conclusions on the basis of that shared approach. Thus, in the United States, speech is protected under the First Amendment unless it demonstrably causes identifiable harm as “fighting words,” defamation, or obscenity (see R. A. V. v City of St. Paul 505 US 377 [1992]). Those categories now have definitions that are deliberately drawn very narrowly, so as to exclude only the most egregious and pernicious speech from the First Amendment’s scope. The task of narrowing the exceptional forms of speech left unprotected by the law has similarly been undertaken in the United Kingdom. It is still the case that legal action can be taken in respect of speech deemed to be “improper, mischievous or illegal” but what the law now understands by those terms is far narrower than it was when Blackstone wrote two and a half centuries ago. An identifiable harm has to be demonstrably caused before speech can be interfered with, whether that be harm to national security, for example, or to the rights and reputation of others. 

This is not to say that the protection of speech is as comprehensive in the UK as it is in the US—it is not. One of the key differences is the extent to which “hate speech” is seen as harmful. In the United States, hateful speech will be protected, no matter how offensive it is, unless it incites immediate violence. In the United Kingdom, by contrast (as in Canada and elsewhere), it is an offence to use “threatening or abusive” words which “stir up hatred” on the basis of a protected characteristic such as race, religion, or sexual orientation. In short, and to put this in Millian terms, the law in the UK, Canada, and elsewhere deems hatred to be harmful even if no violence ensues, whereas the law in the US does not. Under the First Amendment, unless and until there is a risk of immediate violence, even the most offensive speech will not pose a sufficiently “clear and present danger” to warrant intervention. 

Even if diverse conclusions are (for the time being) reached on the extent to which hate should be protected, the starting point for the analysis is essentially the same—it is an inquiry into whether hate itself (i.e., non-violent hate) causes harm of sufficient magnitude to justify legal intervention. Is hate “improper, mischievous, or illegal”? Or is it just unwelcome, unwise, and wrong-headed? Is the better strategy to criminalise it, (as happens in the UK, Canada, and elsewhere), or to expose it to the “marketplace of ideas” and to allow counter-speech to defeat hate speech in argument and debate?

A Balancing Act

It is the same basic inquiry when it comes to speech and privacy. Is the invasion of privacy in any particular instance sufficiently weighty to “count” as a harm that can set limits to free speech, or is it merely an inconvenience that must be tolerated for the greater good of living in a free society? The only answer—even if it does not answer very much—is “it depends.” In some instances, the privacy interests will outweigh the speech interests; and in other cases, it will be the other way around. Ultimately, it will be for a court to rule in any particular case. But, in doing so, courts will set out the sorts of factors that must be taken into account when thinking about how to balance free speech and privacy. For balanced they must be, because it is when they are imbalanced that unjust outcomes are reached (as in the Kaye and Edwards stories above). 

Relevant factors include, but are not limited to, the following: the nature of the person concerned, the nature of the activity or behaviour of the person, the place at which it was happening, and how the media obtained the information about the person. Thus, if the person is someone who has chosen to live in the public eye (a politician, for example), that factor might weigh in favour of publishing and against privacy. Likewise, if the nature of the activity is criminal or otherwise unethical. Likewise again if the behaviour has occurred in a public place. And likewise again if the media have obtained the information honestly and without using overly-intrusive techniques (on which see further below). But each case will be fact-sensitive and delicate judgments must be made in each individual instance. 

The court judgment in the Kaye case—that he had no cause of action at all that he could pursue in response to the press intrusion of his hospital bed—was indefensible. It was remedied, in the end, by the Human Rights Act, Britain’s Bill of Rights, which the Westminster Parliament enacted in 1998. This Act introduced into English law a limited right to privacy but explicitly provided that that right must be balanced against free speech. Indeed, the Act provides in terms that, in such cases, “particular regard” must be given to “the importance of” freedom of expression. The clear aim here was to afford innocent parties such as Kaye a remedy without inhibiting the press from reporting on matters that are in the public interest. Unfortunately, however, in their subsequent interpretation and application of the Human Rights Act, the courts in the UK have not given effect to Parliament’s clear aim in passing that legislation. Rather, they have allowed the right to privacy to grow to such an extent that it now eclipses—and puts into the shade—the media’s right to free speech.

The error lies in the case law of the UK Supreme Court, but at the least, the media is partly at fault. Such have been the underhand and unscrupulous tactics of (elements of) the press in Britain that the public lost sympathy with journalists and, more importantly, lost sight of the distinction between reporting what is in the public interest (which must be free, fair, and robust), on the one hand, and mere salacious gossip (which should be constrained in the face of rights to privacy and reputation), on the other. The tabloid tactics used on Kaye only grew more extreme as the years after 1990 unfolded. Consider Princess Diana fleeing to her death from the long lenses of the paparazzi. Or consider Rupert Murdoch going so far as to close down one of his best-selling titles—the News of the World—in the wake of scandals about journalists hacking the phones of celebrities in search of a story. In instances such as these, legitimate concern for privacy was overrun entirely by the media’s thirst for scandal and gossip. 

Such instances are a million miles from the Edwards story, yet so muddled have we become that we can no longer see the difference. The Edwards story emerged because the family of his victim reported to the press that the BBC, who knew full well of the allegations made against him, had failed to investigate the matter properly, choosing to protect their star newsman rather than probe the truth. Given Mr. Edwards’ status as the BBC’s lead news anchor, that story was manifestly in the public interest—and the press were wrong to think they needed to chill their speech to the point of keeping his identity a secret. Public interest journalism is a world away from the unwarranted media intrusion that cost Kaye his privacy, Princess Diana her life, and Murdoch the News of the World. It is a grave failing of any legal system not to be able to tell the difference. 

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Of course, in the United Kingdom, we have no document or codified text we can point to as authority for our proposition that the Prime Minister must be a member of the Commons or that the King may act only on the advice of ministers. Like New Zealand’s, the British constitution is “unwritten.” That is an inapt term. Almost all of the UK’s constitution is written down, somewhere. But it is not codified. There is no single authoritative text. 

If the British constitution does not obtain its authority from a governing text, where does it obtain its authority from? Of late, it has become fashionable in British law schools to imagine that the constitution is based on (and obtains its authority from) a number of fundamental principles. Some say that parliamentary accountability is a fundamental principle; some say democracy is. Such commentators go on to say these principles explain why we have rules such as the two I’m using as examples. They tell us it is important that the prime minister is a member of the House of Commons because it is to the House of Commons that the PM must discharge his (or her) constitutional obligations, subjecting himself to parliamentary accountability.

That is why we have Prime Minister’s Questions every week, and so on. Likewise, it is important that the King understands that, in today’s constitutional order, the forces of monarchy have been well and truly subjected to those of democracy. The King remains head of state but he is unelected. He owes his position to an accident of birth, not to the ballot box, but it is the latter that rules. Ministers are accountable to the representatives of the people. Thus the King must act only and always on ministerial advice: the principle of democracy insists upon it. 

This style of constitutional reasoning may seem logical. It may appear to be rational—grounded in reason and, as such, consistent with the Enlightenment principles upon which all modern constitutionalism is said to be based. 

And yet I am entirely unpersuaded by it. One may admire this style of constitutional reasoning as a matter of elegance, but does it hold up? Does it not, indeed, beg the rather obvious question: where do the principles come from, and who decides (in the context of an uncodified constitution) what “counts” as a fundamental constitutional principle and what does not? Why is parliamentary accountability a constitutional principle and how did it become one? On whose authority has democracy become a trump card, subjecting even the King himself to the will of the people? 

These questions—and many more like them—are answerable. But, in the end, they are answerable not on the basis of any claim to a higher authority or abstract principle. They are answerable only by reference to history. The British constitution does not obtain its authority from a written legal text. Instead, it owes its authority to the past—to its history. The reason why ministers, from the PM down, are accountable to the House of Commons owes its explanation to no philosophy of modern constitutionalism (after all, there is no equivalent in the US Constitution). Rather, it owes its explanation, both as a descriptive fact and as a norm of constitutional behaviour, to history. It is because Parliament insisted upon it, first on the battlefields of the Civil Wars of the 1640s and thereafter in legislation. Likewise, the reason why the King may act only on ministerial advice and may not use his undoubted prerogative powers to thwart or to run counter to what ministers want is because, by the end of the seventeenth century, Parliament had won for itself not only the right to hold the Crown’s ministers to account, but the right to determine the powers of the Crown itself and, if necessary (as it was in 1688), to remove the Crown from the incumbent’s head and place it on someone else’s instead. None of this can be readily explained as a matter of constitutional rationality, reason, or principle. These are binding and genuinely fundamental rules of constitutional behaviour in the United Kingdom—and they are so because our history demands it. 

The United Kingdom is not an especially old country. In its current form, it dates only from the 1920s, when the United Kingdom of Great Britain and Ireland became the United Kingdom of Great Britain and Northern Ireland. But the UK is composed of four exceptionally old nations, all of which have constitutional histories that reach back into the deep past. England is the dominant partner (it has about 85% of the UK’s population and is responsible for about the same share of the UK’s GDP), although Scottish, Welsh, and Irish history have each made decisive contributions to the UK’s interweaving story. The many centuries of English, Scottish, Welsh, and Irish history make for an overwhelming canvas. No one could master it all, so we have to pick and choose—even when we only wish to grasp the historical foundations of our law. Mostly, we venture no further back than the Civil Wars of the 1640s and the Glorious Revolution of 1688–89, which finally resolved the constitutional disagreements that had helped to fuel them. Occasionally, we may mention Magna Carta, which dates from 1215, but even then we tend to do so anachronistically, and, certainly, few ever say anything about the four centuries which separate it from the constitutional conflicts of the seventeenth century. 

This is a shame, as there is much that can usefully be learned about today’s constitution from the medieval political orders of the Middle Ages. One could start with Henry de Bracton, for example, and his thirteenth-century writings on kingship. Or with Sir John Fortescue’s De Laudibus Legum Angliae, written in the 1470s as a handbook for Edward IV but not published until the 1540s (well into the reign of Henry VIII). Or one could read Sir Thomas Smith’s brilliant Elizabethan overview of Tudor government, De Republica Anglorum, first published in 1583. All contain insights about the nature of rulership and government which remain pertinent to this day. Fortescue, for example, is as compelling as Sir William Blackstone’s Commentaries are, written in the 1760s, that the genius of the English constitution is its mixing together of elements of monarchy, aristocracy, and democracy. Blackstone was adamant that it was the mixed nature of the constitution that had given England her stability. But he was hardly the first great English jurist to alight upon this theme. Fortescue beat him to it by some three hundred years. 

I confess that I do not teach Bracton, Fortescue, or Sir Thomas Smith to my constitutional law students. Perhaps I should. Were I to try to convey a sense of the ongoing importance of today’s British constitution of the late Middle Ages, I would be inclined to reach first for Shakespeare. In particular, I would cite his great tetralogy of history plays, Richard II, the two parts of Henry IV, and Henry V. These are not only Shakespeare’s best histories: they are among the finest of all his plays. Richard II is a story of weak and conflicted rulership, when the ruler doubts himself and crumples under the weight of leadership. Henry IV is a story both of guilt (aka, the burden of taking responsibility for the means by which you have obtained power) and of the public/private split, asking us to reflect on the moral fibre of our putative leaders, as reflected not only in their public action but also in their private behaviour. 

The dominant figure in the first story is of course the king, who usurped Richard’s Crown to become Henry IV; the dominant figure in the second is his son (and heir) Hal, who will rise to become Henry V. The closing of the quartet, Henry V, is a study in leadership, principally but not only in war. It is a case study of how to take men with you, how to lead from the front knowing that the loyalty of those behind you is not only publicly displayed but—far more important, then as now—inwardly felt. The Chorus puts it thus, at the opening of Act 4:

For forth he goes and visits all his host.
Bids them good morrow with a modest smile
And calls them brothers, friends, and countrymen. 
Upon his royal face there is no note
How dread an army hath enrounded him …
But freshly looks and overbears attaint
With cheerful semblance and sweet majesty. 
That every wretch, pining and pale before, 
Beholding him, plucks comfort from his looks. 
A largess universal, like the sun,
His liberal eye doth give to everyone, 
Thawing cold fear, that mean and gentle all
Behold, as may unworthiness define. 
A little touch of Harry in the night.

Henry is about to lead his troops in war. Outnumbered by the “confident and over-lusty” French, they fear decimation. But the king instead leads them to victory, and to glory. 

Of the numerous constitutional insights contained within these majestic and brilliant plays, let me highlight just two, as illustrations of how Shakespeare can be used to illuminate aspects of constitutional law. The first concerns the identity of the state. What is it, this thing, which is constituted by the constitution? This is a question that, in the Anglo-American mainstream, lawyers have not spent enough time worrying about. (It is quite different in the French tradition, where la pouvoir constituant has been a fixation of constitutional theorists since at least the Abbé Sieyès). Perhaps now, as the rise of populism challenges us to consider where the limits should be set to the idea of popular sovereignty, we are belatedly coming around to the realisation that it is not just constituted power we should worry about, but constituent power too. Who has the authority to constitute the state—and what is the state, anyway? These are the foundational concerns of Richard II and they are most powerfully expressed in a speech, loaded with pathos, of the king himself (the speech, “Of comfort no man speak”, in Act 3, scene 2). 

It isn’t popular sovereignty on which Richard ruminates, but his own supposed sovereignty—the sovereignty, that is, which literally embodies the state. The physical embodiment of the state is Richard himself. He realises his body is at once his own (as a man) and the manifestation of the state (as king). It is no accident that Ernst Kantorowicz, in his great study of what he called “medieval political theology,” The King’s Two Bodies (1957), devoted an entire chapter of his analysis to Shakespeare’s Richard II. Richard instructs his companions to:

… sit upon the ground
And tell sad stories of the death of kings, 
How some have been deposed, some slain in war, 
Some haunted by the ghosts they have deposed, 
Some poisoned by their wives, some sleeping killed …

“All murdered,” he blasts. He is inviting his companions (and by extension us) to reflect not only on what it means for the king to die, but what it means for the state. It is worth recalling that Shakespeare is writing at a time when it was treason—a capital offence, no less—to imagine the king’s death. The passing of the monarch risked the passing of the body politic itself. It was a moment of extreme frailty and fragility. And yet, as Richard laments, it is wired into the system (a feature, not a bug). All the king is granted is “a breath, a little scene ǀ To monarchise, be feared, and kill with looks”. Death is never far away. It is “vain conceit” to imagine that the king’s “flesh which walls about our life ǀ Were brass impregnable.” All it takes for death to bore through the king’s flesh—his castle wall—is “a little pin … and farewell king.” The truth, Richard concedes, is that his subjects:

have but mistook me all this while, 
I live with bread like you, feel want, 
Taste grief, need friends.

“Subjected thus,” he asks, “How can you say to me I am a king?” What goes for the king as sovereign goes likewise for any other body making a claim to sovereignty, even the people themselves. Who are we, to think we have the power to lay down the law, the law of the constitution, no less? Are we not mere flesh, living with bread, feeling want, tasting grief, and needing friends? How do we square our own mortal, quotidian ordinariness with the exceptional power we arrogate to ourselves to exercise popular sovereignty? Richard II helps us begin to articulate these questions in a way few other texts can approach.

My second example of contemporary constitutional insight drawn from Shakespeare comes from the end of Henry IV Part 2. Upon his father’s demise, Hal has acceded to the throne—he is now King Henry V. He meets two older men, each very different from the other, both of whom have played an avuncular role in his life. One is Falstaff, Hal’s great lord of misrule. Sir John is clearly expecting preferment but instead is unceremoniously dumped—banished from court with the cutting words, “I know thee not, old man.” 

The other is the late king’s Lord Chief Justice who, we are told, had once had Hal arrested and detained for breach of the peace. The judge fears—indeed, he knows—that the new king “loves [him] not” (Act 5, scene 1). He is expecting, at best, to be dismissed. But the new king surprises him by retaining him in office, telling him to: 

… still bear the balance and the sword; 
And I do wish your honours may increase
Till you do live to see a son of mine
Offend you and obey you as I did. 
So shall I live to speak my father’s words; 
“Happy am I that I have a man so bold
That dares do justice on my proper son,
And not less happy having such a son
That would deliver up his greatness so
Into the hands of Justice.” You did commit me,
For which I do commit into your hand
Th’unstainèd sword that you have used to bear,
With this remembrance: that you use the same
With the like bold, just, and impartial spirit
As you have done ‘gainst me. There is my hand. 
You shall be as a father to my youth; 
My voice shall sound as you do prompt mine ear,
And I will stoop and humble my intents
To your well-practised wise directions.

Henry may be a new king, and he may have acceded to the throne at a tender age (he was in his mid-20s), but he is experienced enough to appreciate that he needs honest counsel, impartial justice, and an independent judiciary. That the rule of law must be administered alike to one and all, irrespective of status, is a given of modern constitutionalism, as is the fact that the realisation of this aspiration demands judges who are independent of government. Neither the “rule of law” nor the “separation of powers” were terms of constitutional art in Shakespeare’s day (the former we owe principally to Dicey; the latter to Montesquieu and Madison). Both are core maxims of the modern constitution, and both are proudly and defiantly on display in Henry IV Part 2, this poignant scene made all the more powerful by its contrast with the banishment of “old Jack Falstaff.”

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