Queen Elizabeth: Republican protesters have a right to free speech, but there are clear legal limits – Murdo Fraser MSP

Amidst all the grief and emotion we witnessed over the past week in the build-up to the late Queen’s funeral and the accession of King Charles, a row has developed over the treatment of republican protesters.

At a number of public events both north and south of the Border, we have seen arrests of those protesting against the monarchy.

The first such incident occurred during the proclamation for the new King Charles at the Mercat Cross in Edinburgh, where a small group of protesters gathered and could be heard loudly booing the proceedings, until they were drowned out by loud shouts of “God save the King” from the large crowd.

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One demonstrator holding a banner with the message, “F*** imperialism, abolish the monarchy” was arrested and charged for breach of the peace.

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The following day the Queen’s coffin was taken up the Royal Mile from Holyrood Palace, followed by her four children on foot, watched by thousands of respectful spectators. One man was arrested for shouting abuse at Prince Andrew, again leading to impromptu shouts of “God save the King” from others present.

South of the Border we have seen a number of other incidents, with individuals holding placards with the slogan “Not my King” being removed from public places, and other individuals arrested and detained by the police for shouting “who elected him?” at the King’s proclamation in Oxford.

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Perhaps the most worrying of all, a protester holding up a blank piece of paper was threatened with arrest if he wrote the words “Not my King” on it.

There were many people who think that those who hold republican views would be better keeping them to themselves at this time of national mourning for a much-loved monarch.

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King Charles walks past the coffin of his late mother, Queen Elizabeth, at St Giles Cathedral in Edinburgh during a service of thanksgiving for her life (Picture: Jane Barlow/pool/AFP via Getty Images)
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To appear at events which are marking the loss of Queen Elizabeth, and the coming to the throne of our new King Charles, to express their opinions is at best distasteful, and in many cases would be seen as offensive.

But if we believe in free speech, we have to be prepared to accept that it will be exercised by those with whom we disagree. “I may not agree with what you have to say, but I will defend to the death your right to say it” is a famous quote attributed to the French philosopher Voltaire. The same sentiment was expressed by the English Lord Justice Sedley who stated: “Freedom only to speak inoffensively is not worth having."

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One has to feel sympathy for the police in circumstances such as these. Doubtless the large majority of those attending recent public events will have been offended at the antics of a handful of protesters, and no doubt have been demanding that the police take action.

But the principle that we have a right of peaceful protest is one which has been clearly stated in law, and one which we should all strenuously uphold, even when we ourselves find the views being expressed inappropriate and offensive.

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That is not to say that the right of free speech is absolute or unqualified. No one has the right “to shout ‘fire’ in a crowded theatre”, to paraphrase the judgement of the US Justice Oliver Wendell Holmes Junior in the Supreme Court Case of Schenck vs United States. There are circumstances in which expressing a view will cross the line and become legitimately a matter for police and the courts.

Scots law contains the common public order offence of breach of the peace which usually manifests itself on charge sheets as “you did shout, swear, conduct yourself in a disorderly manner and commit a breach of the peace”.

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Generally considered wide-reaching in its scope, it is defined as “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”. It is usually as a breach of the peace that offences by protesters are prosecuted.

On any measure, shouting at mourners in a funeral procession would seem clearly to be a breach of the peace, and thus criminal conduct under this measure. This would apply regardless of the circumstances, and the identity of those involved, public figures or not.

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Similarly, holding up a banner containing an obscene word in a public place, or shouting obscene slogans, would constitute a breach of the peace, and rightly lead to prosecution. But it does not mean that simply shouting or holding banners, without the use of profanities, should be outlawed.

I have been encouraged to see the Free Speech Union, with which I am proud to be associated, offering support to some of the protesters who were arrested last week. It is, however, clear that there is a definite line between what is permissible (albeit offensive to many) public protest, and what falls foul of the criminal law.

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It has been interesting to note how many commentators on the left of politics have suddenly acquired an interest in defending free speech, when they have been remarkably silent on the topic up until now.

Whilst it has been mostly those on the right who have defended comics such as Gerry Sadowitz, or indeed those like JK Rowling who have been cancelled for their views on gender issues, now when it is anti-monarchy protesters who are in the firing line, free speech suddenly becomes important to all.

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If we really believe in free speech, we need to defend and protect all those whose views some might regard as unacceptable. We might well disagree with the views being expressed, whether by republican protesters or others, but in a healthy democracy they do have a right to be heard.

From the reactions of the crowds over the past week, it is clear that they are only damaging the cause that they espouse, but no one should deny them the freedom to do that.

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