IN-DEPTH: Legal Victories Against Cancel Culture Could Backfire on Common Law Free Speech

Undated photo showing Lady Justice statue on top of the Central Criminal Court of England and Wales, commonly referred to as the Old Bailey, in central London. Jonathan Brady/PA

One by one, people who lost their jobs for criticising “white privilege,” for saying that trans women are not women, or for challenging other progressive shibboleths have had their cases overturned in court in a series of key tribunal rulings.

But these apparent victories against cancel culture might actually be damaging free speech, according to some legal experts.

Why the concern? Because, in order to win their cases, these people are having to claim that their once run-of-the-mill views are “protected beliefs,” equivalent in law to a religious belief.

So although these cases have won freedom for individuals, some experts believe they are undermining the centuries-old common law assumption that all speech is inherently free. Though some argue that such times require carving out as much liberty out of the legal system as possible.

Gender-critical beliefs, that biological sex is “real, important, and immutable,” is now a protected philosophical belief under the Equality Act 2010, legislation.

More recently, the right to hold and express views which are critical of Critical Race Theory (CRT) has been also protected under the same banner.

Last month, an employment Tribunal ruled that a worker, supported by the Free Speech Union, was expressing a legitimate philosophical belief when he asserted Martin Luther King Jr.’s “colourblind' approach to racism in opposition to ”divisive” critical race theory.

To qualify as a philosophical belief under the Equality Act, the belief must satisfy five criteria set out at Grainger criteria, some of which include that the belief must be “genuinely held ”and “not simply be an opinion or viewpoint based on the present state of information available.”

The belief must be proved a core and consistent part of a person’s life. Some protected beliefs include humanism, atheism and spiritualism and even veganism.

However, some warn that normalising this approach, meaning that all speech that is protected has to fall into a religion-like belief system, is “paving the way for a kind of secular theocracy.”

‘Heretical View’

Anna Loutfi, barrister and head of legal at the Bad Law Project told The Epoch Times that protected belief free speech wins could result in short-term gains.

An example of one of the Bad Law Project’s cases is that of Amy Gallagher, who was subjected to disciplinary proceedings for questioning critical race theory, and who, as a Christian, was forced to attend anti-racism training where she was told that Christianity was linked to racism.

Miss Loutfi explained that in a society that genuinely assumes that the world is round, freedom of expression at common law would protect the idea that people can say it’s flat.

“And that could be described by a judge as a heretical view, but one that is nonetheless protected,” she said.

Anna Loutfi, an equality and human rights barrister, during an interview with NTD's "British Thought Leaders" programme in London. NTD

“But gender ideology thing has exposed something else going on,” she said, adding that there no protections for opinions in the Equality Act.

Ms. Loutfi noted the case of Maya Forstater, who lost her job at a thinktank after tweeting that transgender women could not change their biological sex. Ms. Forstater consequently won in the employment tribunal, alleging direct discrimination and harassment because of her “gender-critical” beliefs.

“If you go through the Equality Law route, which is what people are now doing, very few people rely on common law of freedom of expression . They rely on the idea that their view whatever they’ve expressed, is actually a belief system,” said Ms. Loutfi.

“It’s a belief, and therefore it’s protected, so religion becomes a way of assessing whether something that someone expresses is worthy of protection,” she said, meaning one has to prove their belief system is as important, for example, a Muslim worldview.

She that that if all speech that is protected has to fall into a belief system that is like religion, that will pave the way for “a kind of secular theocracy.”

She also said that “now we’ve got a culture that is totally dominated by the concept of anti-discrimination, equality and inclusion, which is policy everywhere in the public and private sectors.”

“It’s just moved the conversation to a framework where legislation and policy that deals with equality, inclusion and anti-discrimination has become the framework for understanding speech,” she added.

“If you move to a codified system, you can do what the law tells you can do, there’s no presumption of liberty,” she warned.

She said that the view that “sex is is immutable and you can’t change sex happens to be the consensus view in society.”

But she added that gender, which trump’s sex as a fluid idea in someone’s head, is the “fringe view.”

“It is what we might call an eccentric view, we might call it an offensive view,” she said.

“And I would say that under common law, people who argue for transgenderism as a concept and trans rights should be protected at common law, because even they with their heretical, marginal, strange views have a right to be heard,” she added.

Though she said that because those who believe in two sexes are now protected as a belief system, what’s been left unsaid is the transgender belief, has now “by the back door” been implied as the “common sense consensus.”

Free Speech Union

Bryn Harris, chief legal counsel at the Free Speech Union told The Epoch Times that traditionally with basic liberties in this country, “it was presumed that you were free to do it unless the law said otherwise.”

Mr. Harris said that while some employers will have a legitimate business need to control what their employees say, he believed that Equality Act should be limited to simply protecting ie not dismissing someone or treating someone less favourably on the basis of the beliefs they hold.

“But when it comes to manifestation, better expression, that should be dealt with by a new law, “ he said, adding that that could be tricky but ”not impossible” for Parliament to come up with the right test.

However, he added that there’s a danger that we could end up with “powerful gatekeepers” at work tribunals, which are quite junior courts compared to the higher Court, who will determine when we deserve the right to free speech.

He added that the main problem, where the control over speech is, is the level of HR.

“And that’s because the Equality Act incentivises, and makes it almost necessary, for employers to police closely what their employees say. And the reason for that is because the employer will be liable,” he said.

For example, talk amongst workers in a canteen may just be “banter” to some, but if the wrong thing is said,  then employers are liable and they can be sued.

“We’re going to continue to have very close intrusion into basic interactions between employees, and that, for me, is a major intrusion into day-to-day liberty,” he said.

However, Mr. Harris said that he doesn’t think the law should regulate every aspect of our lives.

“I don’t think the law is competent to do that. I don’t think courts are very good at assessing a canteen conversation that took place three years ago. So that’s what I worry about, I do worry that possibility will continue or even worsen,” he said.

‘Conflicts Between Two Sets of Freedom of Speech’

Peter Daley, employment lawyer of high-profile cases such as Ms. Forstater, LGB Alliance and Allison Bailey, told The Epoch Times while legal issues can drive culture, it is the root cause of free speech that must be fundamentally addressed.

Undated handout photo of Maya Forstater, issued on April 27, 2021. PA Media

“Maya [Forstater] explicitly said from the outset that although she was gender critical, people who are on the polar opposite side of the debate, are also protected,” he said.

But he said that the issue with having statutory freedom of speech protections and blanket ones is “that you will then run into straightforward conflicts between two sets of freedom of speech.”

“If you get to a point where you’re basically putting a suit of armour on two different sides of the same debate, you are going to have to have big mechanisms in place to ensure that those two great big armoured rhinos don’t just take chunks out of each other,” he said.

“Which fundamentally, I don’t think anybody really wants,” he added.

“The social benefit is in allowing room for a productive debate to take place, ideally with a view to some kind of social resolution through the exchange of ideas.  There’s no obvious benefit in simply turbo-charging existing levels of toxicity.”

Mr. Daley said that when it comes to cancel culture and freedom of speech there is a “kind of perversion, even weaponisation of morals,” which means that people can be treated in “really unconscionable ways.”

“Once you identify your opponent as not just wrong but as morally evil, you are then given self-granted licence to treat them in a way which would otherwise be unacceptable.  That is at the root of the extremes of language and conduct that we see.”

Ultimately he said while it’s possible to legislate, the issue comes from culture.

“Of course, legal issues can drive culture, but I think you’ve got to fundamentally address the root cause of it. You’ve got to have legal redress for people who are treated unlawfully. But all that is is a route to a remedy when something’s gone wrong,” he added.

“But that legal mechanism doesn’t—in and of itself—stop the wrong happening in the first place.  That’s a question of cultural, rather than solely legal, factors,” he said.

‘Anti-Woke’

Leading researcher into cancel culture, Eric Kauffmann told The Epoch Times that we are “best off using the tools in the Equality Act to carve out as much speech protection as we can.”

In a recent article for The Critic with lawyer and academic James Murray, Mr. Kaufmann, explored if being “anti-woke” could count as a protected philosophical belief.

“We believe that an individual may hold a sincere philosophical belief in “cultural liberalism” (anti-wokeness) worthy of protection, as distinct from and inherently preferable to “cultural socialism” (wokeness),” they wrote.

“This is about the perfect being the enemy of the good,” Mr. Kaufmann told The Epoch Times.

Eric Kaufmann, Professor of Politics at Birkbeck College, University of London, being interviewed by NTD's Lee Hall in London in April 2023. NTD

He said that unless we can repeal all protected categories, which is not feasible in the current political climate, if we opt to not expand protected categories, or not to use the Equality Act for philosophical belief, “we get the worst of all worlds, that is, progressive categories are protected while conservative ones are not.”

“And so, we are best off using the tools in the Equality Act to carve out as much speech protection as we can, trying to push it towards what would be under Common Law. And the more the conservative categories are protected the more those who push equality law might start to rethink their aggressive campaign against speech,” he said.

Mr. Kaufmann added that unless we can repeal all equality law and “truly mean it,” then the next best option is to expand protected categories and protected speech.

“Gender critical views will not be viewed as fringe, here I don’t think the law will shape cultural understandings. Rather there will be a contest of views and we must keep making the legal case that GC views are protected and are actually the mainstream of public opinion,” he said.