Presiding over a Court of Appeal case concerning the misgendering of a trans woman on Twitter, Lord Justice Bean and Mr Justice Warby ruled that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having”.
They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.
Although the latest judgment does not change the law, such an unequivocal ruling from two senior and highly respected members of the judiciary is likely to influence wayward judges in lower courts that freedom of expression must be protected.
In essence, this is a judicial revolt, creating a duty in the law to protect free speech despite the lack of a first amendment over in the UK. The judges took a cultural value — “free speech” — and weaved it into the law.
Most importantly, they emphasized that the speech that needs protecting will by definition be offensive to someone, so cancel culture cannot coexist with free speech. This sets the ground for a legal battle about this crucial value in English society.
Expect such conflicts to arise more frequently. We are out of space and time to screw around with the idea of pluralism anymore; instead, we are asserting the Western Way, which includes a lack of viewpoint discrimination. Others will have to accommodate that, or begone.