Urban Lawyer

Public Regulation of Non-Commercial Speech in the United States and United Kingdom: A Comparison

Edward J. Sullivan and Alexia Solomou

Edward J. Sullivan - B.A., St. John’s University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State University, 1974; M.A. (Political Thought), University of Durham; Diploma in Law, University College, Oxford, 1984; LL.M., University College, London, 1978.
Alexia Solomou - LL.B. with French Law (with Honours), University College, London, 2009; LL.M., Columbia University School of Law, 2010; Diploma, The Hague Academy of Public International Law, 2011

I. Introduction

THE UNITED STATES SUPREME COURT’S RECENT DECISION IN REED V. TOWN OF GILBERT,1 added yet another nuance to American constitutional jurisprudence on free speech regulation. For almost a century, courts have construed the federal constitution’s broad provisions of the First Amendment prohibiting regulation of free speech by Congress,2 as limitations against state and local governments.3 The First Amendment has long been viewed as protecting political, religious, social, and artistic expression as core elements of free speech.4 Moreover, over the past fifty years, the Supreme Court has also determined that the First Amendment applies to commercial speech, although in a manner different from that regarding the core elements of free speech, i.e., those relating to political, social and religious matters.5 Noncommercial speech (especially speech involving the core elements referred to above) may not be treated less well than commercial speech. In Reed, the United States Supreme Court found that the First Amendment was also hostile to differential treatment among various categories of noncommercial speech.6

While the First Amendment applies to all public agencies in the United States, it provides a “floor” for limitations of public agency regulation of speech — states are free to increase those limits as they apply within their boundaries.7 Thus, legal advisors reviewing a non-federal action involving speech must frame those limits by using the more stringent limitations where the two limitations are not precisely the same.8

Unlike in the United States, in the United Kingdom (UK) freedom of expression has not been explicitly spelled out in a written Constitution. One of the cornerstone doctrines of English constitutional law is parliamentary sovereignty, which provides that Parliament has the supreme legal authority in the UK.9 Generally, the courts cannot overrule legislation and Parliament cannot pass a law that future Parliaments cannot change.10 Parliament was therefore free to set limits to freedom of speech until the enactment of the Human Rights Act 1998 (HRA 1998), which incorporated the European Convention on Human Rights and Fundamental Freedoms (the European Convention) into domestic law.11 While the UK signed the European Convention on November 4, 1950 and ratified it on March 8, 1951,12 it did not became part of domestic law until 2000, when the HRA 1998 came into effect.

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