By Jonathan Ayling

Free speech is a cornerstone of democratic societies. It is difficult to overstate its significance to the legal profession. Our justice system (like our democratic systems of representation) is built on an adversarial system of debate, interrogation, and intellectual challenge. Why? 

Because this is the surest way humans have devised to discern truth. 

This is not a reality that belongs simply to any one culture, geographical area, or time period. Justice requires truth. And the way we arrive at the closest approximation of the truth possible is by allowing competing narratives, perspectives, and beliefs to challenge each other. 

This is impossible without free speech. 

An erosion of free speech around the world, but particularly in the English-speaking West, stands to threaten the integrity of numerous professions; academics and journalists included. Yet, this erosion is no more concerning than for the legal profession, and as a result also to the rule of law. 

Free speech is central to the legal profession for several reasons.

Firstly, it serves as the cornerstone of a fair and transparent judicial system. Lawyers rely on free speech to advocate for their clients effectively, present arguments, and challenge opposing viewpoints in courtrooms. The freedom to not only have justice down, but also seen to be down, is enabled by speech rights, which guarantee the right to receive and impart information. Without the ability to freely express ideas and opinions, the legal process would be stifled, hindering the search for justice and undermining its legitimacy.

Secondly, free speech is crucial for legal education and scholarship. Legal professionals engage in ongoing discourse and debate to refine laws, precedents, and interpretations. By encouraging an open exchange of ideas, free speech fosters intellectual growth within the legal community and drives innovation in legal practice. A growing list of subjects deemed 'off-limits' threatens to undermine this innovation and production of knowledge. 

Furthermore, free speech rights are essential in safeguarding individual liberties. Lawyers often champion causes related to civil rights, social justice, and governmental accountability—all of which rely on the protection of free expression. By advocating for free speech, legal professionals uphold democratic values and ensure that diverse voices are heard and respected. 'Diversity' (as it is popularly conceived by many) is worth little if it does not include viewpoint diversity, and the right to express those opinions.  

In essence, free speech is not just a privilege but a responsibility within the legal profession. It upholds the integrity of legal proceedings, nurtures intellectual development, and defends fundamental rights. By embracing and defending free speech, legal professionals uphold the principles of justice, equality, and democracy that underpin the rule of law. This means lawyers not only fulfill their professional duties but also contribute to the maintenance of a free, fair, and democratic society. 

Lawyers, kaitiaki of the law and advocates for justice, play a critical role in preserving and promoting free speech as a fundamental human right and essential pillar of democracy.

Yet, like its role in many other indispensable institutions in our liberal democracy, the centrality of free speech to the legal profession is increasingly disputed. The Law Society’s decisions to submit to Parliament in favour of an extension of ‘Hate Speech’ laws, in direct contradiction of the speech rights of all Kiwis, or to investigate the personal comments of two lawyers for ‘transphobia’ are concerning. 

Likewise, the unjustified and excessive use of name-suppression by the Courts, which, by often silencing the voices of victims, denies natural justice erodes this liberty further.

These examples show that even the legal profession is not immune to, what the Danish free speech historian, Jacob Mchangama, calls ‘free speech entropy’.

The right to speak without fear of unjust retribution is the sine qua non, not only our justice system, but of our democracy. Free speech is the foundation on which our liberal vision of human rights and civil liberties is founded. Without robust and vibrant free speech in our legal profession, the pursuit of justice will be thwarted.

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