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Monday, 25 March 2013

Free speech on holiday

I am presently on holiday overseas.  So too, it would seem, is the concept of free speech in Britain.  The UK Human Rights Blog has an interesting post (I am afraid I won't be able to put in direct links at the moment, it is too time-consuming on the mobile device I am using) has a post on Core Issues Trust v TFL [2013] EWHC 651 (Admin).  The High Court ruled that TFL had not acted unlawfully by banning an advertisement from the side of London buses which was to have read "Not Gay! Ex-Gay, Post Gay and Proud. Get over it!".  Although it had handled the decision making process badly (suggesting a traditional JR challenge might have succeeded), the decision itself was not unlawful or in breach of the human rights of the claimant (CIT).

The background is that a while ago a similar ad had been run by a gay rights group, Stonewall, which had read "Some people are gay. Get over it!"

The UKHR post sets out the detail, which need not be repeated here.  I simply want to add an observation or two (note, based entirely on the UKHR post).  The judge seems to have held that although CIT's right to freedom of expression had been engaged - which plainly it must have been - TFL's decision was a justified and proportionate restriction on that right.  The reason is that the restriction was in furtherance of the legitimate aim of protecting the "rights of others".

We will come back to that in a moment.  But, extraordinarily, the court also held that Art 9 - freedom of religion - was not engaged, because CIT "was not an individual, religious community or church". This seems to me to be a finding of convenience. It seems obvious that CIT was established by its founders as a vehicle for promoting their religious beliefs.  Equally obviously, the bus advertisements were propounding one of those beliefs.  To pretend that those beliefs do not have to be considered because of the corporate structure that the holders chose is a cop-out, designed to ensure that the judge did not have to consider the awkward prospect of how far the right to manifest religious beliefs might extend.

And here is the nub.  Stonewall was entitled to express its beliefs on the side of the bus.  CIT was not.  CIT was not because it was felt that its beliefs would have undesirable consequences in the form of homophobia.  But CIT would doubtless respond that according to its beliefs (wrong headed as some including myself would think) it is homosexuality that is wrong, that the mainstream scientific and social acceptance of homsosexuality is incorrect, and therefore it is Stonewall's beliefs that would have undesirable consequences.

Who is right?  Most people nowadays would say Stonewall.  But that is not what free speech is about.  Had free speech meant banning anything contrary to the prevailing viewpoint about desirable consequences then the Stonewall movement would never have gotten off the ground.  Peter Tatchel, the well known gay rights campaigner, understands this well and has often articulated similar thoughts.

In my view London buses aren't really the place for debates about social, political or religious issues and therefore TFL should have had a policy banning all such messages.  But that is only my opinion, and not one I hold particularly strongly anyway (being happy not to pay attention to them, and not have to debate the scope of what is political and what is not).  The fact is that once TFL decided to allow Stonewall to run its campaign (and indeed the "atheist" bus ads) then its role as a public body was not to take sides and to allow counterpoints.

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