How do courts distinguish between protected expression and criminal speech under the Public Order Act?
Executive summary
Courts balance free expression against public-order crimes by asking whether the speech falls inside established criminal categories (eg, incitement, obstruction, causing “serious disruption”) or instead constitutes protected political or journalistic expression; recent UK statutory changes in the Public Order Act 2023 expanded police powers to target disruptive protest tactics and created new offences such as interfering with major transport or infrastructure and “locking on” (max sentences up to 51 weeks for some new offences) [1] [2]. U.S. executive and legislative moves in 2025 underscore a contrasting focus on preserving constitutionally protected speech from government restriction, highlighting divergent institutional pressures in play [3] [4].
1. How statutes set the frame: new offences vs protected activity
Statutes like the UK Public Order Act 2023 create specific criminal offences that shift the legal question from “is this speech offensive?” to “does this conduct meet the statutory elements of a crime,” for example obstructing major transport works, interfering with key national infrastructure, or the new tunnelling and “locking on” offences — some carrying sentences up to 51 weeks — and a stated parliamentary intent to prevent protest tactics deemed disruptive [1] [2]. Advocacy groups and legal observers warn these provisions broaden police discretion and risk criminalising protest that courts previously treated as protected political expression [5] [6].
2. The courts’ basic analytical pivot: conduct plus intent, not mere words
When judges decide whether speech is criminal, they focus on whether the defendant’s acts satisfy the statutory elements (eg, obstruction, interference) and whether there was intent or a real risk that the conduct would cause the harm the law targets. The Public Order Act’s new offences are framed around conduct that produces disruption to transport or infrastructure rather than mere expression, which signals that courts will parse the line between expressive acts and criminal interference by reference to those elements [2] [1]. Available sources do not provide a single test used across all courts; they show litigation and appellate review is already testing the boundaries [7] [6].
3. Human-rights and proportionality review: Article 10/ECHR in the background
Civil-rights organisations and legal commentators stress that when restrictions on protest are litigated, courts must apply proportionality analysis under Article 10 ECHR (freedom of expression) and Article 11 (assembly). JUSTICE argued the Public Order Bill risked incompatibility with those rights because ECHR jurisprudence protects even expression that “offends, shocks or disturbs” the public; that tension frames judicial assessment of whether a statutory interference can be justified and proportionate [5]. The Court of Appeal has already struck down regulations tied to “serious disruption” as inconsistent with statutory requirements, indicating active judicial scrutiny [7].
4. Police powers and procedural safeguards on trial
The Act also expanded police powers — including stop-and-search-like powers described as “suspicion-less” in some commentary — and introduced Serious Disruption Prevention Orders (SDPOs) that can impose conditions on repeat protestors [6]. Critics note these powers have racialised impacts and could be applied disproportionately; courts reviewing enforcement will have to consider whether police used powers for legitimate public-order aims or to suppress reporting and observation, an issue specifically addressed by a statutory limit that police cannot use powers solely to prevent people observing or reporting on a protest [1] [6].
5. U.S. context: enforcement restraint as competing policy
By contrast, U.S. executive action in 2025 emphasised preventing government agents from suppressing constitutionally protected speech, ordering investigations into past federal activities and prohibiting federal resources from being used to censor protected speech — a policy dynamic that courts in different systems will weigh against state powers to regulate disruption [3] [4]. That contrast highlights how political actors shape which side of the “protection vs. prevention” balance receives institutional preference, and courts operate within those evolving frameworks [3].
6. What to watch in litigation and appeals
Expect challenges testing whether statutory terms like “serious disruption” and newly created offences are sufficiently clear and whether their application respects ECHR protections. The Court of Appeal’s May 2025 rulings undermining overbroad regulations show courts will police statutory limits [7]. Human-rights groups and defence lawyers will press proportionality arguments; governments will stress public-safety and infrastructure protection [5] [6].
Limitations: reporting and sources supplied describe statutes, policy responses and commentary but do not quote specific recent trial judgments applying the full suite of Public Order Act offences; available sources do not detail a single, settled judicial test for every fact pattern under the Act [1] [7] [6].