Britain's speech sickness and why Leveson would make it worse

'I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.'

Thomas Jefferson was right, free speech is not a perfect value. Because of the infinite subjectivity that defines free speech, sometimes its ideal can achieve a discord counter to the common interest. But when free speech is excessively restrained, society is also detained in a dark, stagnant cell of lost ideas and imprisoned truths. Sadly in Britain, the cell door is closing at an alarming rate.

In order to keep the cell door open, the British Parliament must first reject Leveson's advisory to establish a new press regulatory framework. If MPs follow his recommendations, they will weaken the 'scrutiny of power' that any functioning democracy requires. A new and expansive regulatory body will mean that the contours of 'legitimate' speech in Britain, are practically and (via the 'chilling effect') perceptively determined by the subjective opinions of regulators, rather than by the individual instincts of journalists. Hacking and harassment are already illegal under UK law and simply require more effective enforcement. New restrictions on press freedom would only serve to reinforce the terrible condition of the UK's present speech law.

For a timely example of the current law's negative impact, look to Lord McAlpine. After wrongly being accused as a sex offender, McAlpine's ensuing fury was obviously justified. Unfortunately, instead of pursuing vindication via the facts, McAlpine has gone far further. Seeking to take advantage of the thousands of twitter users who repeated the false allegations when they first made the news (and before the error became established), McAlpine's legal team have demanded that all these 'tweeters' pay a price. Tweeters must apologize, hand over their details and will then be required to make individually determined charity donations (plus an 'administration charge') in restitution for their sins.

McAlpine seeks to use the law for intimidation and profit. By attacking non-malicious speech by those who, albeit wrongly, believed they were speaking on a critical truth - a sex abuse scandal at the heart of the British political establishment, McAlpine is challenging the basic and larger presumption of free speech - 'scrutiny of power'. McAlpine could have accepted an apology and compensation from major media outlets. Instead, by the impact his lawsuits will have on 'chilling' future speech, the former Parliamentarian has struck another blow against free speech in Britain.

Beyond McAlpine's example, there are two overarching elements to Britain's present speech malady - the criminal element and the commercial.

First, the criminal side. This year, Britons have been arrested for an array of speech offenses. In March, a student was imprisoned for his racist tweets. In August, a seventeen year old was arrested and given a formal warning after he sent a taunting message to an Olympian. In October, a man was jailed for 12 weeks after he made jokes about a missing five year old girl. In November, a man was arrested after he set fire to a poppy and uploaded its photo onto Facebook. True, all these acts were affronts to common decency. But it's also true that in each case, the speakers words lacked a joined violent intention. By setting such a restrictive boundary for speech, English law asserts popular emotion at the cost of the individual's voice. Supporters of these restrictions would have us believe that the laws stabilize society by establishing norms of social interaction. They are wrong. By limiting speech on passionately held issues, the law drives the purveyors of such speech to burrow into hardened narratives of victimhood and to coalesce in new coalitions of anger and fear. Just look at the rise of the far right 'English Defense League'. For all its idiocy and evil, the group is still seen by its members as a voice for the 'oppressed'.

As history teaches us, excessive restriction of free speech can also quickly lead to a deeply unpleasant reality.

Now the commercial front to Britain's speech sickness.

Though obfuscated by the phone hacking scandal, over the past few years Britain's rich and powerful have increasingly pursued aggressive legal action against those who would threaten their 'brand image'. Using democratically ludicrous creations like the 'super-injunction', lawyers have gagged the public. At the same time, by restricting public awareness of public figures true personas and then simultaneously allowing those figures to make money off their false public images, the Courts have stood in defense of false corporate personalities. An example? Until his super-injunction cloaked extra-marital affair was leaked in Parliament, soccer star Ryan Giggs was viewed by countless parents as a role model for their children. When you consider Giggs's endorsement deals, his false personality certainly did no harm for his wallet.

So, thanks to the English Courts and their ally in Leveson, public access to relevant knowledge is being sacrificed at the false altar of 'private information'. The result? The English judiciary has become an absolute arbiter of 'fact', as well as a gleeful and in terms of 'binding the world', even global defender of misrepresentation. Thus far, the British Government has been an active ally to this agenda.

Aside from the philosophical-moral deficiency inherent in Britain's war on free speech, English law also reaps varied and highly destructive practical consequences for the UK. 

Consider...

Fearing a defamation suit, The Sunday Times failed to print allegations that Qatar's soccer World Cup bid was being pursued via corrupt means. The impact? In 2022, the world's greatest supporting event might be the result of bribes.

Art critics are increasingly reluctant to report suspected forgeries.

Terrorism researchers writing thousands of miles away from Britain are summoned to pay defamation awards in response to their crucial analysis.

In 2008, Jimmy Savile (Britain's Sandusky) sued The Sun after it linked him to a sex abuse scandal. Savile effectively chilled future allegations and was able to escape justice for the many sex crimes it now appears that he committed.

And so, from art to criminal conduct, from sport to politics, the insidious face of British speech law is rendered apparent. Without tolerance for speech, British democracy will become little more than the servant of the lawyer and the bastion of the activist judge. Free speech imprisoned; debate will stifle, ideas will wilt and the powerful will reap the dividends of a society deprived of effective scrutiny.

The British Parliament must reject the Leveson report.

If you liked this piece, you might enjoy one of my other free speech focused pieces-
American Free Speech is Exceptional
Free speech in NYC

The freer the speech, the stronger the democracy

We must not censor our entertainment industry

Media acquisitions vindicate Citizens United

European idiocy on free speech

The most recent US free speech case. We are lucky to have The First Amendment.

Mona Eltahawy successful attack on free speech in NYC

Yesterday, the NYC MTA voted to restrict the application of the First Amendment on their network. This comes in response to a current advertisement campaign which calls on subway users to 'defeat Jihad'. In a stunningly stupid 8-0 vote, the MTA has decided to prohibit future adverts that it 'reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace'. The MTA seemingly believe that in passing this restriction, they remain in compliance with First Amendment case law. They are wrong. 

If (and I assume they did) the MTA consulted an lawyer in coming to the conclusion that their new approach was legally compliant, then they urgently need to put out a job ad for a new attorney. Brandenburg V Ohio, the operating US Supreme Court case that defines free speech vs incitement boundaries, is clear in its prescription. Under Brandenburg, only speech which intends to create a condition of 'imminent lawless action' can be restricted by public authority. The 'defeat Jihad' advert does not meet this burden. The advert does not pursue imminent lawless action, it simply advocates a political position (albeit from my view a stupid one). Indeed, the Roberts Court has upheld this type of speech as owed the highest protection under law. As Roberts put it, the Government must protect 'even hurtful speech on public issues to ensure that we do not stifle public debate'. Cognizant of the law, it should have been manifestly obvious to the MTA that in attempting to restrict speech which lacks an intention to cause imminent lawless action, they have exceeded their authority under the Constitution. That this advert pursues a sensitive topic is irrelevant. Justice Scalia recently noted the obvious (apparently complex for some) fact that where we restrict speech in fear of angering those in opposition to that speech, the First Amendment suffers serious injury. Undue restrictions on speech restrict individual opinion. Undue restrictions of individual opinion chill societal debate. Chilled societal debate inhibits effective discussion and policy formulation on issues of public concern. An example of the detrimental impact of the 'chilling effect' was seen on last night's episode of the BBC's flagship domestic political debate program, 'Question Time'. Here, the normally articulate Steve Coogan hesitatingly rambled out an opinion on an obvious issue of UK public concern. Why? Because of his concern that he would be labeled a racist. Coogan's irrationally rational fear of being labeled, weakened an important debate.

The pursuit of sensitivity might be the finest (short term) ally of civility, but in the long term, the objectified pursuit of sensitive speech is a terrible enemy of freedom.

For New Yorkers, this is a terrible decision. The MTA are trying to claim that their 'disclaimers' will protect future 'viewpoint' based adverts. However, the new rules seem deliberately designed to restrict adverts like the recent 'Defeat Jihad' ad. It appears that free speech opponents like Mona Eltahawy,  who think that they have the right to destroy speech, have won out. Eltahawy is unashamedly claiming as much on twitter.

While I am confident that the courts will ultimately overturn the MTA ruling, until then, In New York, intimidation has won out.

UK laws on free speech

UK law is stupid when it comes to issues of free speech. Recently, a number of criminal prosecutions have been brought against individuals who made remarks on the internet which upset people. These comments were dumb, mean spirited and deserving of repudiation. However, they should not have received criminal sanction. The fact that English law imposes a burden on a speaker to ensure that his speech will not reasonably be perceived as offensive (even if he does not intend for it to be so) is truly ridiculous. Such a burden restricts emotional debate and chills public discourse on matters of key public concern. It also leads to a profoundly tiered approach towards determining what is and what is not legitimate speech, allowing prosecutors and the police to apply their own flexibly subjective standards in the enforcement of the law. These laws are un-democratic and authoritarian. Sadly they are supplemented by equally bad UK laws on defamation. I am gratified that the US still protects free speech where the UK does not.

It shouldn't be illegal to be an ass hole.

Citizens United continuing news

Last night Justice Scalia gave an interview to CNN's Piers Morgan. During the interview he noted that while Citizens United was in his view absolutely properly decided (I agree), there is a clear case for strong public disclosure regulations in terms of letting the public know who is funding speech. This is a noteworthy and important point that most of the media seems to have missed. Groups like that affiliated with Karl Rove have come under fire for using effective loopholes in the law to protect their donors from publicity. I agree with Justice Scalia - there is nothing inherently unconstitutional about preventing advocacy groups from hiding their  donor lists. From a political point of view, I believe it is essential that the public are able to understand the agenda that fuels a particular radio, tv or web advert campaign. If you spend money to enter the public domain, you should not be protected from the scrutiny that the effective political system requires. On a side note, Matt Bai's excellent piece in the NYTimes Magazine illustrates how the Democratic scare tactics over the Citizens United case have been shown to be totally overblown and devoid of factual truth. The President should be ashamed of himself for games like this. And this. And this. And this. And this.

On the first Obama link - Notice Schumer leaning over the Supreme Court justices clapping like an ass hole.