Is it possible to have a principled, consistent approach as to when speech acts on social media should have adverse legal consequences?
Or will it always be the case that, even though cloaked in the heady language of “free speech”, people will pick and choose who should suffer sanctions on the basis of prejudice, partisanship and/or expediency?
Let’s consider a hypothetical situation: person [A] uses a social media platform to publish [B] about a group of people [C], when [B] is an especially unpleasant statement. If you know nothing else about this social media utterance, is it possible to have a view on whether [A] should face an adverse legal sanction?
Some would say that, even at this level of abstraction, [A] has a right to free speech and so there is nothing the state can and should do to [A] without violating that right. Most of us, however, would want to know more before expressing a view.
What some people seem to want to know is which group of people [C] is being insulted or threatened. If it is one group then it is a free speech issue, but if it is another group then it is a serious offence and should be prosecuted or punished.
But the problem here is that if it is a free speech issue only on the basis of [C] then it is hardly a principled or consistent position, even if it is framed as such. Similarly, if it is a free speech act depending only on the identity of [A] then, again, it cannot really been seen as a principled or consistent position.
The better position is to look at the content of [B]. No legal regime guarantees absolute freedom for all possible speech acts. Fraud, for example, is often committed by spoken or written words, as are conspiracies to commit murder. No serious person would say fraud and conspiracies to commit murder should be protected by a right to free expression.
And this is why free expression is what is called by lawyers a “qualified” right. It is a principle of general rather than universal application, and it is thereby subject to exceptions. The question then becomes: what exceptions?
One exception is that certain types of threatening and hostile statements are prohibited. These can be threats or nastiness about an individual or about a group of people with a certain characteristic. But drawing any line of definition here is difficult.
In one famous case the defendant, Lucy Connolly, had in July 2024 tweeted the following about asylum seekers accommodated in hotels:
“Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care, while you’re at it take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist so be it.”
She was then charged under section 19(1) of the Public Order Act 1986, which provides that a person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if they intend thereby to stir up racial hatred, or having regard to all the circumstances racial hatred is likely to be stirred up thereby.
Connolly, on the basis of legal advice, pleaded guilty to this serious charge. She was probably wise to do so, for if she had pleaded not guilty and then convicted any sentence would have been heavier. She received a three-and-a-half-year sentence on 31 October 2024 for her social media utterance, though she was released on 21 August 2025.
Many thought her sentence excessive. Some thought she should not have even been convicted, notwithstanding Connolly’s own guilty plea. Kemi Badenoch, the leader of the opposition, said: “Protecting people from words should not be given greater weight in law than public safety. If the law does this, then the law itself is broken and it’s time parliament looked again at the Public Order Act.”
Over the last week, past tweets posted by the campaigner Alaa Abd El-Fattah – who was recently released from prison in Egypt, and arrived in the UK in late December – have come to light. According to the Guardian:
“Most of the social media posts in question were written on X between 2010 and 2012 during the Arab Spring, when the British-Egyptian democracy activist was turning 30. The tweets appeared to show Abd El-Fattah calling for violence against Zionists and the police.
“In the posts, most of which appear to have been deleted and could not immediately be verified, he described the killing of Zionists as heroic, adding ‘we need to kill more of them’. In 2011 he is accused of saying police ‘don’t have rights, we should just kill them all’. He also once described British people as dogs and monkeys.
“Screenshots posted online appear to show that on 8 August 2011, during the London riots, he posted: ‘Go burn the city or downing street or hunt police u fools.’ A year later he appeared to post: ‘By the way I’m a racist, I don’t like white people so piss off.’”
In calling for lethal violence and in affirming racism, the tweets (if accurately reported) are comparable to the tweet of Connolly. It is difficult to distinguish between them as speech acts. He himself has apologised for and disowned the statements.
The legal sanction that Abd El-Fattah faces is not prosecution under the Public Order Act but removal of his British citizenship. There are demands that the Home Secretary exercise this power for the public good.
Badenoch has said “citizenship decisions… must take account of social media activity, public statements and patterns of belief.”
It is not easy to reconcile Badenoch’s respective statements about the Connolly and Abd El-Fattah cases. But she is not alone. Many people will say Connolly should have been convicted but Abd El-Fattah should not face sanction, and many will have the opposite view. Few will say both should have the protection of free speech, and few will say that both should suffer legal consequences.
In today’s hyper-partisan political culture, a common position is “free speech for me, but not for thee”. Those claiming the benefit of the right to free expression often make grand declarations against censorship and so on, while simultaneously nodding along with prohibitions and sanctions on others.
The problem is that fundamental rights do not only exist on the rarified plane of abstraction, but instead have to be applied in concrete practical cases.
And this often means that what can be a “free speech” issue in one situation can quickly become a “they deserve it” dismissal in another, with only the slightest change of fact – usually the identity of [A] or the group [C] that is being verbally insulted or threatened. The statement [B] can be pretty much the same, as with Connolly and Abd El-Fattah cases.
But a genuinely consistent approach to the application of the principle of free speech should be indifferent as to the identity of [A] or the group [C] that is being verbally insulted or threatened. But a genuinely consistent approach is hard, if not almost impossible. We may think we are dealing with first principles, but we may be doing something else instead.
[Further reading: When Trotsky took on Keir Starmer]
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