Introduction
Eric Barendt, in his 2009 article Freedom of Expression in the United Kingdom under the Human Rights Act 1998, begins with a stark observation: “English law has traditionally taken little or no notice of freedom of speech.” I would disagree with Barendt on this point. English law has actively sought to limit and prohibit entirely free expression for much of its history, and has, even today, only reached a settlement in which freedom of expression is granted as a qualified right. To that extent, the law has taken a great interest in freedom of speech.
Freedom of speech in medieval England
The legal and political systems of the medieval and early modern periods were designed to suppress dissenting voices – whether religious, political, or literary – and to punish those who challenged established authority. Although many of those instruments of control have since been dismantled or reformed, expression in the United Kingdom remains subject to certain legal limits.
In medieval England, there was no general right to free expression. Speech could easily be punished as sedition, heresy, or treason. The Church, in particular, took a serious and close interest in what was said and published, and did so on weighty grounds: heresy and dissent were seen as threats to divine order, monarchical legitimacy, and public peace.
The medieval legal establishment saw secular and ecclesiastical courts operating alongside one another. The vast network of courts enforcing the law of the Church had sweeping powers to take action agains those who committed crimes of heresy, blasphemy, defamation, which was originally regarded as a moral, rather than civil crime.
The Church took it upon itself to police as an institution ideas as well as published works. In 1277, Robert Kilwardby, the then-Archbishop of Canterbury and a former Dominican theologian and Chancellor of Oxford University, issued what became known as the 1277 Condemnations, which threatened excommunication for those who taught or spread ideas which the authorities saw as Averroist or extreme Aristotelian doctrines.
Those who believed or stated that God could not create more than one world; that the world was eternal and not created ex nihilo; or that moral virtue could be attained without grace were cut off from Communion – then regarded as a serious punishment. The belief that “outside the Church, there is no salvation” was prevalent, and excommunication would have constituted a serious threat to people at the time.
As Jacques Le Goff wrote in his 1964 work Medieval Civilisation: “Excommunication, the Church’s most dreaded weapon, was regarded as a form of spiritual death. The excommunicate was shunned, his goods might be confiscated, and his body denied Christian burial. Few punishments inspired greater terror”.
The other part of the medieval legal settlement – civil authorities – split the responsibility of marshalling speech and expression with their ecclesiastical counterparts. For them, words were legally significant only insofar as they caused harm – to reputation, authority, or public peace. Civil authority was concerned less with truth or heresy and more with obedience, stability, and honour.
Speech offences were then, rather than offences to personal morality or to the Divine, treated under common law or statute as threats to the King’s peace; the Royal dignity, or public morality. Controls on speech were tight, and punishments harsh. The passage of the Statute of Treasons in 1352 meant that “compassing or imagining the death of the King” became treason – and words alone could evidence this if spoken maliciously.
Further laws, such as the Statute of Westminster I (1275) made it an offence to “tell or publish false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm”. In practice, this meant that civil authorities could take legal action against anyone who spread false news or information about the King, Peers or royal officials.
Bodies such as the King’s Council could investigate “rumours and words against the King” as a matter of state security, and, by the late fifteenth century, this had developed into the Court of Star Chamber, which became a key instrument for controlling speech, libel, and printing under the Tudors.
The combination of ecclesiastical and civil limitations on speech meant that writings and utterances during the early modern period were subject to tight controls and the threat of serious punishment if violated.
The general conception of speech was that it was a serious matter which had the capacity to undermine public order, the moral standing of a society, and which could inflict serious harm on both the social settlement, and the relationship between humanity and the divine.
Freedom of speech under the Tudors
The advent of the printing press in the late fifteenth century led to a renewed focus from both civil and ecclesiastical authorities on printed works, which became subject to modernised controls.
Following the introduction of the printing press to England by William Caxton in 1476, all printed works were soon required to obtain ecclesiastical approval before publication. License to print was typically granted by the Archbishop of Canterbury or the Bishop of London, while university authorities oversaw the approval of academic texts.
The Ecclesiastical Commission and bishops’ chanceries held broad powers to review and license books, and printing without permission could lead to imprisonment, the destruction of presses, or excommunication. Although the English Church did not establish its own Index Librorum Prohibitorum as Rome did, it cooperated closely with continental efforts to suppress heretical literature. From the 1520s onwards, officials pursued Wycliffite and later Lutheran works with particular zeal, confiscating and burning banned texts. The Archbishop of Canterbury’s officers were even authorised to search ships and ports – especially those in London – for smuggled books deemed dangerous to the faith.
However, this period saw ecclesiastical authorities joined and eventually replaced by civil censorship mechanisms toward the end of the sixteenth century. A series of royal rather than episcopal proclamations and licensing statutes required printers to obtain official authorisation before issuing any book, and presses were limited to London, Oxford and Cambridge, where they could be more easily supervised.
The system was institutionalised in 1557, when Mary I granted a royal charter to the Stationers’ Company of London. This guild of printers, booksellers and bookbinders was granted a monopoly over the right to print and sell books in England, meaning that the Company acted, in effect, as an arm of government censorship. The Company maintained a register of titles, and no book could be printed unless it had been entered there with the approval of the appropriate authority: the Bishops, or the Privy Council.
The Stationers were empowered to search out and seize unlicensed books, destroy presses, and imprison offending printers, enforcing both royal and ecclesiastical orders.
In practice, this system ensured that every printer was bound by economic interest and legal obligation to serve the state’s regulatory aims. The Company’s wardens carried out raids on clandestine presses, confiscated forbidden works, and burned heretical or politically subversive texts—especially Protestant pamphlets under Mary I and Catholic or Puritan tracts under Elizabeth I. The Crown used this apparatus not only to protect religious orthodoxy but also to suppress political dissent and control the flow of information in times of crisis.
During the reigns of Mary I and Elizabeth I, the Company’s regime was relatively effective in controlling London’s small, tightly clustered printing trade. With only a few dozen licensed printers operating within the city walls, wardens could easily inspect presses, check typefaces, and ensure that every book bore the name of its printer and the required licence. The destruction of heretical books and the seizure of illicit presses were frequent and visible, reinforcing the deterrent effect the Company, and ultimately the state, desired. However, the power to monopolise publication was largely restricted to London in practice because of the increasing availability and affordability of print as a medium.
As literacy increased and the demand for books grew in the seventeenth century, the system began to fray. Clandestine presses sprang up in suburbs such as Southwark, Fleet Street, and St Paul’s Churchyard, as well as in the provinces, far beyond the Company’s reach. Underground printers learned to operate with mobility and secrecy: they moved presses frequently, printed under false imprints (often using continental place names like “Amsterdam” or “Leiden”), and distributed through networks of sympathetic booksellers and hawkers. The spread of cheap pamphlets and broadsheets during the Reformation, the English Civil War, and later the Popish Plot and Exclusion Crisis made enforcement nearly impossible.
Freedom of speech in the seventeenth and eighteen centuries
Changes in technology, productive capacity and the nature of the printed market combined with conflict within the Stationers’ Company itself. Many of its members privately profited from pirated or politically suspect material, while others resented the Privy Council’s interference in what they saw as their own trade monopoly. The Crown continued to issue Proclamations against seditious or heretical books, and the Licensing Act of 1662 attempted to restore tighter supervision, but the sheer volume of printing overwhelmed the system. By the 1640s, when the Civil War turned pamphleteering into a weapon of propaganda, control had effectively collapsed: hundreds of unlicensed tracts were being printed every month, many anonymously or under pseudonyms.
Printing began in Scotland in 1507, but it was not until the 1550s, when Protestant ideas were spreading more widely, that Parliament moved to regulate the trade. New laws sought to control both books printed within Scotland and those imported from abroad. No printer was permitted to operate without first obtaining a licence from a bishop, and those who produced heretical works faced the confiscation of their materials and banishment from the realm.
Despite the Scottish Reformation of 1560, many areas control never left the remit of civil authorities, or quickly swung back to secular control over the course of the late sixteenth century. While the clergy, whether ministers or bishops, were frequently consulted, the official censors became servants of the state and not of the church.
Because Scotland lacked an English-style Stationers’ Company, enforcement depended on the Privy Council, burghs, customs, and litigious patent-holders, creating a system which was effective in particular cases, but patchy across the whole market. Censorship in Scotland was characterised by periodic, sharp crackdowns, with illicit printers arrested and books burned, but legal monopolies and the efforts of the Privy Council were largely ineffective in creating a system of sustained, consistent censorship.
After the Restoration, the authorities in England tried repeatedly to reassert control, but the same problems persisted. The Stationers’ Company lacked both the manpower and the public legitimacy to police an increasingly literate and politically engaged society. Smuggling from the Low Countries and Scotland continued, and even official printers sometimes turned a blind eye to prohibited works. By the time Parliament refused to renew the Licensing Act in 1695, the idea of total print regulation was already obsolete. The market, the burgeoning coffeehouse culture, and the pamphlet wars of the 1680s had created a de facto public sphere that no guild could contain.
The refusal of Parliament to renew the Licensing Act in 1695 was one of the most serious legal changes in how freedom of expression was regarded, and marked a change in direction from authorities on how speech was regulated. Legally, now, printers no longer needed a licence before publishing, and the concept of ‘prior restraint’ was abolished. However, as William Blackstone noted in his Commentaries, this did not mean that simply anything could be published without repercussion. Printers had every right to print, but if what they printed violated the law, they were still liable to face punishment.
The legal settlement at the end of the seventeenth century was largely dependent on a principle which had been established in 1606. Termed by Edmund Coke, De Libellis Famosis – Latin for “On Slanderous or Defamatory Libels”. The term referred to a case decided in 1606 in the Star Chamber, under the early reign of James I, and involved a man named John Lambert, who had circulated anonymous satirical verses attacking the Archbishop of Canterbury, Richard Bancroft, and other senior clergy. Although the verses were private and circulated to only a few people, Lambert was prosecuted for publishing a libel that defamed not just individuals but, by extension, the public authority of the Church and state.
The Star Chamber, thought to have been located in the centre of what is now the site of the Houses of Parliament, and so named for the stars which adorned the decoration of its roof, operated without a jury, and largely in secret. The judgement of the court in this case determined four legal principles which were to become the new order which governed speech and publication.
- That libel was to be regarded as a crime, rather than simply a private wrong. Before this case, libel could be treated as a civil injury. However, the Star Chamber held that defamatory writing was also a criminal offence, because it could disturb the public peace, concluding that “the publishing of a libel is an offence against the state, tending to breach of the peace, as well as against the particular party slandered”. From 1606, libel became a matter of public order, not just personal injury.
- That true statements could still be regarded as libellous. The court explicitly ruled that truth was no defence. This idea — paradoxical by modern standards — rested on the logic that public scandal was the harm, not the falsehood.
- That libel against officials or the state was to be regarded as a more serious offence than private libel. In other words, if the libel targeted a magistrate, prelate, or public official, it was deemed especially serious, because it could erode public trust in governance.
- That the intent behind the libel was to be regarded as irrelevant. The mere act of publishing or distributing a libel – even privately or anonymously – was to be regarded as sufficient for guilt.
The case was to have even greater influence during the latter seventeenth and eighteenth centuries, as “seditious libel” became the central instrument of state control over expression.
Whilst both blasphemy and obscenity remained punishable under both common law and statute, it was policed less and less by ecclesiastical courts until their decline after 1689. Crucially, the Bill of Rights, issued in 1689, guaranteed freedom of speech, but only in Parliament.
However, despite a harsh legal settlement and a legal regard in both civil and common law for certain forms of speech as holding the capacity to inflict serious harm, the situation in reality was quite different. The period 1600 to 1800 saw a dramatic expansion of public discourse; coffeehouses, pamphlets, periodicals, and newspapers helped to create what Jürgen Habermas later called the “bourgeois public sphere.” Censorship increasingly became practically impossible: by the early eighteenth century there were hundreds of printers and booksellers in London alone, many operating semi-legally.
Trials for libel became political theatre — writers like John Wilkes, Daniel Defoe, and later Thomas Paine turned prosecution into publicity, and their texts continued to be widely circulated, despite legal action by the state. Juries increasingly refused to convict in libel trials when they felt the accused was exposing government corruption or telling the truth, and Charles Fox’s Libel Act of 1792 formally gave juries the right to decide whether a publication was libellous, not just whether it had been printed – a major step toward popular control over free speech law.
Change during the Victorian period
By the late eighteenth and early nineteenth centuries the government, nonetheless, continued to regard freedom of expression as essentially risky, and used the legal instruments they had inherited from the seventeenth century to police it.
Governments actively introduced new laws which restricted free expression, such as the Seditious Meetings Act (originally passed in 1795, and renewed in 1817), which restricted public assemblies, whilst the Treasonable and Seditious Practices Act (1795) made criticism of the Crown a potential felony.
The government of William Pitt the Younger, in particular, alarmed by the French Revolution, used these laws and the legal principle set out by the De Libellis Famosis case heavily between the 1790s–1810s against radicals like Thomas Paine, William Cobbett, and Leigh Hunt.
However, the weight of societal and intellectual opinion began to gather greater pace, and pressure was increasingly exerted on the government to pursue freedom of expression both as a fundamental right, and a moral good.
The Six Acts of 1819, rushed through after the Peterloo Massacre, had imposed new taxes on newspapers and tightened seditious libel laws, but these became increasingly unenforceable, in part driven by the mass increase in demand for such works which developed over the nineteenth century. Between 1800 and 1900, literacy rates rose from roughly 50 percent to over 90 percent, and cheap printing, the penny press, and later the half-penny press, producing publications like the Daily Mail from 1896, created a mass reading public that no government could easily control.
The practical difficulties of enforcement were combined with new legislation like the 1832 Reform Act which made overt repression politically harder to justify, and other methods of restriction, such as the stamp duties on newspapers (originally targeted to discourage the publication of cheap, seditious newspapers), were reduced in 1836, and finally abolished in 1855.
Throughout the nineteenth century, prosecutions for seditious and blasphemous libel declined and by the mid-Victorian period the courts increasingly treated public discussion as socially useful.
Intellectuals like John Stuart Mill advocated this point with increasing force. In his 1859 work, On Liberty, Mill wrote “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”. Rather than threatening the established order, liberal philosophers increasingly argued that it was through disagreement and discourse that a state, and a society, improved and adapted.
By the mid-nineteenth century, Britain saw an increasing tolerance for freer expression. The Chartist movement turned the “people’s right to speak” into mass politics, organising vast meetings, petitions and debates for universal male suffrage, while the Anti–Corn Law League used pamphlets, posters and platform speaking to advocate their points.
Rising literacy widened the audience for criticism of both government and wider society. Novelists such as Charles Dickens exposed corruption, class injustice and bureaucratic cruelty; George Eliot, Thomas Hardy and Elizabeth Gaskell probed and interrogated subjects and questions of religion, morality and sexual hypocrisy in ways earlier authorities would likely have suppressed.
Inside Parliament, press galleries were formally recognised in 1803 and regular printed reports of debates (the forerunner of today’s Hansard) made political speech a public record accessible to any reader.
In the courts, juries grew reluctant to convict for libel or blasphemy. The prosecutions of Richard Carlile between 1819–22 for publishing Thomas Paine’s Age of Reason only increased sympathy for him as a martyr to free thought. By the century’s end, judges were more inclined to treat open discussion as socially beneficial, a striking reversal of the eighteenth-century instinct to view it as a threat to order.
Freedom of speech in war and peace
However, the trend toward increasingly free speech would come under threat from the conditions of total war which were to arrive with the First World War.
When Britain entered the War in August 1914, the government moved quickly to centralise control over information and public expression. The Defence of the Realm Act (DORA) – passed 4 days after war was declared – gave ministers extraordinary powers to suppress any speech, publication, or activity that might “endanger the success of His Majesty’s forces” or cause “disaffection” or “alarm” among the population.
Newspapers and periodicals were subject to wartime censorship, with editors required to submit sensitive military material to official censors before publication. Letters, telegrams, and theatre scripts could be intercepted or banned, and it became an offence to spread rumours, to “utter any statement likely to cause disaffection among His Majesty’s forces,” or to “prejudice recruiting or discipline.”
These powers were used to prosecute a broad range of individuals and movements.
Pacifists and conscientious objectors were arrested for distributing anti-conscription leaflets or speaking at public meetings; the No-Conscription Fellowship and figures including Bertrand Russell faced imprisonment for professions which were seen to be contrary to this settlement. Socialists and trade unionists, including members of the Independent Labour Party and the British Socialist Party, were targeted for anti-war propaganda or strikes deemed subversive, and Irish nationalists were harshly treated, with newspapers supporting Sinn Féin or independence suppressed. The government also used press censorship to shape morale, forbidding publication of casualty figures or material deemed likely to cause panic or upset. The result was a public sphere in which open dissent became almost impossible. Even private criticism could lead to prosecution and social ostracism.
Yet many citizens accepted these restrictions as a necessary wartime sacrifice. The prevailing view was that “careless talk costs lives”, and speech was broadly considered to be patriotic when it supported the war, subversive when it did not. DORA embedded the idea that freedom of speech was a privilege subject to national security – a principle that lingered long after the armistice, and DORA was itself revived along with the outbreak of the Second World War, under new Emergency Powers (Defence) Acts.
Between the two World Wars, the legal settlement as regarding freedom of speech remained on a war footing. Anxiety about communism and to an extent, fascism, led to new limits on speech, in the form of The Incitement to Disaffection Act 1934, which criminalised attempts to undermine military loyalty and the Public Order Act 1936, which targeted fascist rallies and hate speech. Courts and politicians increasingly distinguished between reasoned political debate and speech likely to provoke violence or hatred. Public opinion on the matter was largely ambivalent.
The post-War settlement
After 1945, freedom of expression was formally recognised as a human right for the first time, but this still represented a tentative and cautious step rather than a dramatic break with the past. The European Convention on Human Rights, quickly enshrined freedom of expression in Article 10 – yet it did so in qualified terms, allowing restrictions “necessary in a democratic society” for reasons such as national security or public order.
The United Kingdom ratified the Convention in 1951 but showed little appetite to translate this principle into domestic law until the Human Rights Act of 1998, nearly half a century later. This gradualism reflected a broader post-war mindset – that even after the defeat of fascism, few in government or the judiciary sought an absolute or revolutionary conception of free speech. Instead, the British approach continued to show restraint, viewing expression as a right to be exercised responsibly rather than unconditionally.
The Human Rights Act ultimately marked a move away from the old discretionary, judge-made common law tradition toward a codified, rights-based framework – but one that preserved the familiar instinct to weigh liberty carefully against privacy, security, and equality, not to elevate it above them.
Today, freedom of speech and expression in the United Kingdom is largely governed under Article 10 of the European Convention on Human Rights, incorporated into domestic law through the Human Rights Act 1998, which guarantees the right to “hold opinions and to receive and impart information and ideas without interference by public authority.” Yet, as in earlier centuries, this freedom is expressly qualified. Article 10(2) still permits restrictions that are “necessary in a democratic society” to protect national security, public safety, the prevention of disorder or crime, health or morals, or the rights and reputations of others.
A network of modern statutes are in place in the United Kingdom designed to qualify and control freedom of expression. The Public Order Act 1986 criminalises threatening, abusive, or insulting speech intended or likely to stir up racial hatred, later extended to cover hatred on religious or sexual-orientation grounds, whilst the Communications Act 2003 and Malicious Communications Act 1988 prohibit grossly offensive or menacing communications sent online or by electronic means.
The Counter-Terrorism and Security Act 2015 imposes a statutory “Prevent” duty on public bodies to address extremist speech that risks drawing individuals into terrorism. The Defamation Act 2013 modernised libel law, striking a balance between freedom of expression and protection of reputation, while the Official Secrets Acts (1911–1989) still criminalise the unauthorised disclosure of sensitive state information. More recently, the Online Safety Act 2023 has brought digital platforms under a new regime of accountability, requiring them to limit illegal content and protect users from harm.
The public debates surrounding free speech today – from university “no-platforming” and “cancel culture,” to the regulation of online hate, misinformation, and political advertising – all turn on this question of balance. Supporters of stronger regulation argue that unchecked speech in the digital age amplifies disinformation and abuse, threatening democratic trust and the safety of minorities.
Opponents warn that the same mechanisms risk chilling dissent and eroding a core democratic freedom. Efforts such as the Higher Education (Freedom of Speech) Act 2023 have sought to reassert academic liberty against what ministers describe as a culture of self-censorship, while others, particularly civil-liberties groups, caution that government efforts to police extremism or online harm may reproduce the paternalism of earlier eras.
The United Kingdom has never embraced the absolute model of the United States’ First Amendment, preferring a context-based approach rooted in centuries of common-law evolution. Freedom of speech in the UK has been, and remains, a qualified right. How this evolves in light of the new challenge posed by digital technology and social media is unclear, and successive governments will likely need to find their way down a path which has historically been winding and fraught with obstacles.
Oliver Bramley.
Oliver Bramley graduated from Cambridge in 2023, and now works in the House of Lords. He formerly worked as a Senior Communications Adviser in the House of Commons. He has been published in several academic journals on elements of modern history and macroeconomics.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.