It is a predicament that any lawyer with courtroom experience will recognise.
In England, for example, many lawyers will have their own story about when they are instructed to go to court to apply for the ‘usual order’ only to be asked by the judge as to what order that might be and the hapless lawyer did not know.
It is an experience that should only happen once to a lawyer, if it happens at at all.
This is because the basic requirements of any court room advocacy are to know (a) exactly what order or other remedy you are asking for and (b) the applicable test to be applied by the court in granting that order or other remedy.
If you know nothing else, that is what you should always know before you open your mouth as an advocate.David Allen Green, ‘A bad day in court for Rudolph Giuliani’ davidallengreen.com
Category: Qualifying Session
Redmond-Bate v. Director of Public Prosecutions [1999] EWHC Admin 733
Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.
[1999] EWHC Admin 733, per Sedley LJ at [20]
To be cited whenever anyone suggests that being offensive is a reason to suppress free speech.
What’s all this then?
This is an informal blog space I’m going to use to store notes and comments on things I’ve read. I hope it will be a useful tool as I begin some sustained, formal study into the free speech issues that interest me.