Fairly self-explanatory. I took the two most serious current proposals for free speech reform emanating from London policy shops and compared them side-by-side.
Here’s the comparison document in Google Docs.
A screen cap is below; the full thing runs 10 pages.
The ASI’s proposal is a complete draft bill, sweeping in application, with thirty-one sections and seven schedules.
Prosperity’s is principally a policy paper – a very good one – recommending specific, highly targeted legislative changes and containing some legislative pseudocode.
Nearly every provision Prosperity recommends already exists, in some form, in the ASI text, including many that Prosperity elected not to address. The two documents differ as much as they do because they employ different constitutional assumptions, set out below.
Doctrinal differences between the proposals
The ASI View: Enumerated Rights and Parliamentary Sovereignty
The ASI’s drafters take the view that enumerated rights are both possible in, and native to, the British constitutional tradition.
There’s nothing about the enumerated rights approach that is inconsistent with Parliamentary Sovereignty, either, as Prosperity appeared to suggest in their launch video. At least, that’s how we at the ASI decided to do it – obviously proposing an entrenched rule like the First Amendment would not be consistent with the British constitution, which is why we didn’t draft that way. The tables (and the actual ASI bill text – take a look at Sections 11(1)(l) and Section 25) make this quite clear.
Before the Human Rights Act 1998 (which transposed the European Convention into domestic law, and which both proposals would effectively disapply where free speech is concerned), the last instrument to create enumerated rights in Britain was the Bill of Rights 1689, the direct ancestor of the American Bill of Rights and the U.S. Constitution.
The ASI proposal is therefore better understood as the restoration of a British form which has fallen into disuse, a derivative of which the Americans are currently using very effectively to protect free speech, than as the importation of an alien American form.
The ASI’s view is that repeals alone cannot fix Britain’s free speech problem, because state censorship in Britain is not confined to statutes which criminalise speech. Only an enumerated right, binding on all state action and defined in the statute itself, is capable of controlling the British state’s censorship apparatus.
The ASI’s view is also that it would be suboptimal, if not impossible, to effectively protect free speech in the UK after repealing Article 10 ECHR (incorporated into domestic law by the Human Rights Act 1998) if you do not replace Article 10 with a native, better, enumerated British free speech right.
Much of the British censorship state operates through formal and informal pressure on publishing platforms and businesses, non-crime recording by police, conditions attached to licensing and banking, regulation not rising to the level of a criminal offence, the exercise of discretion by public bodies, adverse employment determinations driven by regulatory considerations, and the discretion of first-instance courts applying caselaw informed by Strasbourg jurisprudence. None of these operate through the criminal law, and none will be substantially affected by repealing a handful of criminal statutes.
A positive right, once created, requires the “state” to which it applies to be defined, lawful and unlawful expression to be defined, and the boundaries of and exceptions to these concepts to be specified. This is why the ASI text addresses these issues and more, including jawboning, delegation, compelled speech, and time, place and manner restrictions.
A proposal which does not create a positive right does not generate those questions.
The Prosperity View: Common Law Restoration
Prosperity’s proposal, on the other hand, intentionally does not create a positive right, for doctrinal reasons. The doctrinal view explicitly stated by Prosperity’s drafters and a number of its intellectual endorsers is that enumerated rights improperly transfer power from Parliament to the judiciary and are inconsistent with the British constitution.
In that view, the correct remedy to Britain’s free speech problem is, primarily, the repeal of the offending statutes, mainly criminal statutes, and the common law will kick in after that.
The ASI team disagrees with this approach, because common law was not especially speech-protective before 1998 and it has not been particularly effective at restraining censorship after 1998. This notwithstanding, Prosperity’s viewpoint is a considered constitutional position, and it is the principal point of disagreement between the two proposals. Prosperity proposes to address the question of ECHR/Strasbourg Article 10 jurisprudence by repealing the Convention rights outright and not replacing them.
Practical differences between the proposals
The content of each proposal is substantially informed by its doctrinal assumptions.
The ASI’s bill focuses on creating a First Amendment style nondiscrimination principle that governs all state and public sector action, and private sector action in a handful of very narrowly-defined cases. It spends a lot of word count defining its free speech right, which is expansive but nonetheless qualified by reference to objective criteria and subordinated to any qualification to that right set out by and Act of Parliament. Strasbourg-style balancing tests are avoided completely.
Prosperity’s bill is primarily focused on repealing existing censorship statutes. Although it also proposes a tort of “unlawful interference with the right of free speech,” it does not provide a statutory definition of that right.
On the repeals front, the Prosperity proposal is, as a general matter, considerably narrower than the ASI’s.
The reason for the difference between these two documents on the repeal schedules, in my view, is the intended audience.
Prosperity’s proposal reads like it is written for current MPs. It is firmly grounded in current English legal and constitutional doctrine. It optimizes for provisions where there is broad existing consensus on law reform, and proposes changes that the political class could comfortably introduce this year without setting off a media firestorm. It focuses its fire on legislative provisions which are widely unpopular across the political spectrum and are seen as deserving of repeal.
The ASI bill is written for a hypothetical pro-free speech party that has a large parliamentary majority after a future election, and has the desire to make very significant changes to free speech law once in government. I’ve spent the last several years defending people and platforms against actual censorship, most notably the Online Safety Act 2023, where I represented every single American target of formal OSA enforcement action in 2025. Prosperity’s proposal leaves the OSA largely alone, which was something of a surprise, as the OSA is one of the West’s most oppressive censorship laws and widely loathed by the sort of people who are receptive to the Prosperity Institute’s ideas. However, if we examine it in the current political context, the OSA is nonetheless a censorship law which enjoys broad cross-party support in the current Parliament.
Prosperity’s proposal assumes deletion of Article 10 of the ECHR, the European Convention’s freedom of speech right, from British law. We did not go that far, deleting only Article 10(2) in order to abolish Strasbourg’s balancing test, which our Bill supersedes; in principle, we could have deleted the rest of Article 10, but the question of what to do with the ECHR was out of scope for the drafting exercise we were undertaking.
We are not married to the ECHR by any means; my co-authors and I would gladly write bills to abolish and replace the entire thing with a series of British-native bills like our Freedom of Speech Bill, if we thought there were demand by any of the parties for this to be done. Even so, on the question of free speech, we think that removing the ECHR right without replacing it with a “British Bill of Rights”-style positive right (something Britain did once enact, in 1689) would be a mistake and, without such a proposal, a cure to the country’s free speech problem will not be possible. We proposed a “Bill of Rights” style rule that would shift large amounts of power from the state to individual speakers in our bill, as Sections 4 and 5.
Prosperity’s proposal, though it hits the high notes, leaves open a number of lesser-known, but nonetheless commonly-used, censorship vectors. Any failure by a future government to close these vectors will result in the old censorship practices many now want abolished finding new pathways and causing the same problems, once again. These include the Protection from Harassment Act 1997, the Terrorism Acts, common law breach of peace, Section 4A of the Public Order Act 1986, the Public Order Act 2023 – and, as I mentioned above, the Online Safety Act 2023. It also retains the concept of “grossly offensive” communications from Section 127 of the Communications Act 2003, which the ASI’s drafters believe is widely abused by law enforcement – resulting in so many arrests, 12,000 per year, that its enforcement can be described in terms of daily averages.
The ASI bill is not shy about slamming the door shut on all of those vectors. It is designed to eliminate practically every non-US-style-free-speech-compatible offence in English criminal law, with very few exceptions (one of those exceptions being the ban on political uniforms contained in the Public Order Act 1936; we believe that question was permanently answered in World War II, and did not propose to revisit the issue).
In one area, hate crime sentencing enhancements, Prosperity went further than we did. We intentionally did not address sentencing issues and non-speech crimes; hate crime enhancements for offences like, e.g., common assault or GBH are not, in our view, speech issues, as offences against the person are not expressive conduct. That is, in our view, an important debate to have but, ultimately, it is separate from the free speech debate. Prosperity also took a different approach to costs allocation and proposed a statutory tort which is mechanically a little different from the civil cause of action the ASI bill proposed.
By adding a positive right into the mix and affirmatively prohibiting the state from censoring speech, our bill is designed to eliminate the entire censorship apparatus, not just a handful of the worst censorship offences. We want to eliminate even the narrowest possibility of future prosecutions under laws like section 127 of the Communications Act, erase the names sitting in Non-Crime Hate Incident databases, end the foreign enforcement letters, revitalize the UK’s tech and AI industries, and terminate the jawboned deplatformings from banks.
Every provision in the ASI bill corresponds to a real injury its authors have seen inflicted on a real client or a real defendant. It contains the unfashionable provisions because the unfashionable provisions, and unfashionable speech, is where censorship hits hardest.
These two proposals, which point in the same general direction but define “victory” in two very different ways, serve different functions in the UK’s free speech movement. Prosperity has opened with the compromise position that is constitutionally straightforward. But if the opening bid is low, the final deal lands below it – as any lawyer knows, that is just how negotiations work.
Somebody has to state the complete claim, make the big ask, in operative language, so that the eventual compromise is one that expands free speech to the maximum possible extent rather than only covering a fraction of it. Don’t ask, don’t get.
Where we will land on a future free speech bill is likely going to be somewhere between Prosperity’s approach and the ASI’s approach. Now the real fun begins, as activists and parliamentarians figure out what they actually want British free speech to look like, and attempt to hammer out a consensus somewhere between these two positions.
If a future pro-free-speech government is to haggle with the House of Lords over this issue, personally, I should prefer for it to haggle down from the maximalist position the ASI proposed rather than from a more bare-bones approach that can survive a second and third reading with few objections – but would, even if it sailed through, leave many of the UK’s free speech issues unaddressed, and leave the necessary task of slaying the dragon for another generation, on another day.
When we get our chance to fix this problem, it might be the only shot we have for decades. We should fix it once and fix it well. Which approach prevails – enumerated rights vs common law – is a matter for the British people and their elected representatives to decide.