Free speech means the right to shout ‘theatre’ in a crowded fire.

May 28, 2025 – Abbie Hoffman

One delight of the publicly funded Bar, one of the very few delights left, is that you have the privilege of being surrounded by congenial colleagues in a kind of touring common room not unlike the sixth form at school or similar gathering places at university. True, it is not what it was. Back in the day, it was accompanied by the provision of decentish food and beverages and, in one famous court, a glass of sherry on a Friday. But, even now, at least at the minority of courts that provide some refreshment, it gives you an opportunity to have reasonably intelligent conversation and unburden yourself from the woes of an irritating client, a jobsworth police officer, a bad-tempered judge and brown envelopes demanding tax.

Speech there is relatively free. There is a chance, if you say something completely outrageous, that you might be reported under the whistleblowing provisions or given a stern look from a colleague but, on the whole, we tolerate each other with amused detachment. When one of us ends up at the guillotine known as ‘a tribunal’ the rest remember perhaps some of the comments the deceased made during those breaks for lunch or while waiting for a verdict and think ‘perhaps we should have said something’, but such is the regard for freedom of speech or, alternatively, the fear of conflict and social embarrassment that we usually failed to do so.

Eating a nasty sandwich of white bread containing a slab of processed cheese last week, surrounded by police officers, defendants on bail and their friends and families, I found myself opposite Jonathan Rotter. One day, I may compose a diary entry about whether people’s surnames condition the way they develop. Rotter would be a prime example. He is enormously good fun but, I am afraid, lives up to his surname. One of his party pieces is to use a word or phrase that sounds remarkably offensive, incorrect and whatever ‘-ist’ you wish to apply to it, which usually results in a long judicial stare and more often than not a reprimand. He then delights in explaining to the judge the derivation of the word or phrase in question, demonstrating that it does not in fact mean what we might all take it to mean at first blush. Grinning, he then uses it again and again while the judge squirms but cannot find a logical reason to stop him.

Not surprisingly, he is a great proponent of free speech, at least as far as his own utterances are concerned. But, as he slurped through a surprisingly nice smelling cup of tomato soup, his mood was rather more reflective. He started in his usual vein by talking about some story in the papers concerning a fellow citizen having their house turned over by the police for tweeting (or is it X-ing now?) something which the local inspector, having too much time on his hands, suspected would upset a fellow citizen. It was doubly annoying to the suspect as in fact his tweet (or X) was in support of the principles of the person the inspector deemed likely to be upset. This misunderstanding occurred because the suspect had used the tool which we are warned as barristers to avoid when addressing juries – sarcasm. Most of us have deployed it at least once, only to find a jury taking it literally. It seems that the inspector had missed the sarcasm too.

‘We have never had free speech,’ said Rotter. ‘It’s a complete myth. We stumbled into a Parliamentary democracy by chance, aided by the power of a burgeoning middle class and have this completely bonkers narrative about being the home of the free.’ He reminded me of a case we did together when we were very young where a girl was wearing a T-shirt on which was printed a graphic image of a female chest and her boyfriend had a similarly offensive print on his shorts. Both were arrested for behaviour likely to cause a breach of the peace and unsuccessfully defended by us in front of an outraged tribunal in the Home Counties. Rotter had me in stitches using his colourful vernacular to describe the offences but, before I could respond, a woman next to us put her face in uncomfortably close proximity to ours and said: ‘Do you mind not being so disgusting when I’m eating my dinner. And you both barristers too. And old enough to know better.’ Rotter put on his grin. ‘Told you!’ he said.