Extreme Speech, Public Order, and Democracy: Lessons from The Masses

This chapter attempts to identify a core free speech principle that must be respected in any democratic society and against which the free speech restrictions can be measured. It argues that two essential components of democracy - popular sovereignty and the individual right of political participation - generate a right of every citizen to participate in the discussion by which public opinion is formed. It concludes that this core norm was breached in Hammond v. DPP, and arguably violated in Norwood v. DPP. These two decisions and the precedent that they follow render insecure the right of British citizens to voice views that offend dominant opinion. The chapter suggests several reasons for this state of affairs, including the British judiciary's view that free speech is instrumental to, rather than constitutive of, democracy, and the excessive deference afforded lower court findings in free speech cases. These mistakes are remarkably similar to those made by the U.S. Supreme Court when it first started to develop free speech doctrine in the early 20th century.