TOV · Companion Essay · Freedom of Expression
When Tolerance Restricts Freedom
Britain, America, and the danger of defending an open society by restricting the speech it was created to protect.
Can a liberal democracy become intolerant in its attempt to protect tolerance? The differences between British and American free-speech law offer a practical test of Karl Popper’s paradox.
Britain has a longstanding legal commitment to freedom of expression. Yet its laws permit restrictions on speech that would ordinarily encounter formidable constitutional obstacles in the United States. The contrast raises a question central to Popper’s analysis: when does protecting society from coercion become government control over permissible opinion?
Britain versus the United States
| Issue | United States | England and Wales |
|---|---|---|
| Offensive or insulting expression | Generally protected, including deeply offensive political and religious opinions. | May fall within specific public-order or communications offences, depending on context and statutory elements. |
| Criticism of religion | Strongly protected. | Generally protected; religious criticism itself is not prohibited, although applicable threatening-speech offences remain. |
| Incitement | Under Brandenburg, advocacy may be punished as incitement only where directed to and likely to produce imminent lawless action.1 | Public-order offences concerning stirring up hatred use different statutory standards; no general Brandenburg-style imminence test applies. |
| Online communications | Offensiveness alone generally does not remove First Amendment protection. | Specified threatening, grossly offensive, or knowingly false communications may engage criminal law, subject to the elements of particular offences. |
| Platform regulation | Government content mandates face substantial constitutional constraints. | The Online Safety Act places duties on regulated services concerning illegal content and other specified risks.4 |
The difference begins with the legal architecture. In the United States, the First Amendment strongly protects expression against government restriction. Britain protects expression through Article 10 of the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998. Article 10 recognizes freedom of expression but permits restrictions prescribed by law when necessary and proportionate for specified public interests.2
A prosecution that tests the boundary
In July 2024, following the murders of children in Southport, Lucy Connolly posted a message calling for hotels housing asylum seekers to be set on fire. She pleaded guilty to stirring up racial hatred under section 19 of the Public Order Act 1986. In October 2024, she received a sentence of 31 months’ imprisonment. The Court of Appeal rejected her challenge to the sentence on May 20, 2025.3
Connolly’s case should not be represented as punishment merely for expressing an unpopular opinion. Her message advocated serious violence. That is precisely why the case is useful: it directs attention toward the line between speech that offends and speech that encourages violent action, and toward the proportionality of the punishment imposed.
The digital complication
The Communications Act 2003 has contained offences involving certain grossly offensive communications. The Online Safety Act 2023 also established a wider regulatory system for online services, as well as specified communications offences. These provisions should not be confused: criminal liability for an individual speaker is different from a platform’s regulatory obligations.4
Supporters of broader regulation argue that law should protect people against threats, incitement, and harassment and prevent online systems from facilitating abuse. Critics are concerned that expansive statutory language and pressure on platforms can chill lawful expression or encourage the removal of material that is merely controversial. Both arguments concern the conditions under which an open society remains genuinely open.
Another Paradox?
A tolerant society faces dangers from two directions. Organized movements may exploit freedom of expression to intimidate opponents and ultimately destroy the liberties that protect dissent. Governments, meanwhile, may respond to intolerance by expanding their authority to restrict speech, extending criminal penalties beyond threats and incitement into the territory of offensive or unpopular opinion.
Britain’s approach illustrates this second danger. Defenders of its restrictions argue that protecting citizens against hatred, harassment, and intimidation sustains a tolerant society. Critics question whether the resulting powers give public authorities excessive discretion to determine which opinions may be expressed.
The distinction between peaceful dissent and coercive intimidation must remain clear, particularly when criminal sanctions are involved. Popper’s warning therefore extends to the institutions entrusted with defending the open society. Government possesses the legal authority to employ coercion, making restraint, independent judicial review, and enforceable liberties essential safeguards.
