For Halsbury's Law Exchange
This Thursday Politeia is hosting an evening on the different approaches to Freedom of Speech in the United Kingdom and United States. It is a particularly topical subject, needless to say, in the year of the superinjunction. Here are a few thoughts on the differences between legal approaches in the two countries, on which I freely stand to be corrected if my knowledge of American law proves as deficient as I suspect.
Both the UK and the US have a strong – and interwoven – history of free speech. As a concept in political philosophy, arguments for free speech that are strikingly modern in content can be found in Milton’s Areopagitica, and later in the famous harm principle of Mill’s On Liberty. As a legal concept, however, free speech developed primarily in the United States in the twentieth century, pursuant to the explicit protection of the First Amendment to the Constitution.
Nowadays, an equivalent jurisprudence is being developed by the European Court of Human Rights and the domestic courts of member states under art 10 of the European Convention on Human Rights (the Convention). There is, however, a significant difference in the wording of the American and European constitutional documents. The First Amendment is in these apparently unqualified terms:
“Congress shall make no law abridging freedom of speech ...”
Even the Ten Commandments would struggle to compete with that lack of ambiguity. A moment’s reflection, however, shows that it would be impossible to comply with the First Amendment literally: “no law” abridging freedom of speech would mean no law preserving state secrets, no copyright protection and no confidentiality for medical records, for a start. Equally it would mean allowing the most outlandish libel and slander, wildly misleading advertising, and so on and so forth – to the point where no law abridging freedom of speech would effectively mean no law at all.
The American courts have therefore had to permit many an abridgement to free speech over the years. In doing so, they have attempted to fashion principled exceptions, whilst at least paying lip service to the uncompromising nature of the First Amendment. Often this involves reclassifying something as “not speech”, or conversely permitting something controversial such as pornography on the ground that it is “speech” even though for the most part no-one might be saying anything.
By contrast, art 10 of the Convention starts with a declaration of the right to free expression, but then adds that the exercise of that right may be subject to such restrictions as are:
“prescribed by law and are necessary in a democratic society ...”
Thus, while any form of speech automatically engages the protection of art 10, the protection might be withdrawn if the infringement under question meets the qualifying criteria – but only to the extent that it does.
In the UK additional weight is given by s 12 of the Human Rights Act 1998, which provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered.
The different wording of the First Amendment and the Constitution is accordingly more apparent than real: the Convention effectively codifies the same approach that the US courts are compelled to take by the impossibility of literal First Amendment compliance: allowing restrictions, but only where lawful, necessary and proportionate.
Nevertheless, it is fair to say that protection of speech has tended to be been stronger in the United States.
There are at least three interrelated reasons. First, since the American courts are effectively compelled to undertake a form of rhetorical trickery - or even intellectual dishonesty - to proscribe speech given the bluntness of the First Amendment, they tend to be very reluctant to do so.
Secondly, and much more importantly, the First Amendment has long been central to American political debate and American culture generally, in a fashion that does not really find any equivalent in Europe (save arguably for the Dutch culture of tolerance). Knowledge and indeed reverence of the First Amendment is far greater in the US than knowledge of art 10 in Europe.
Thirdly, under the Convention, European courts are required to balance art 10 with other Convention rights, such as the right to privacy. The Convention does not give priority to art 10 over those other rights; the courts are required to afford them equal weight. In America that argument would be much harder to advance.
One can see any number of recent manifestations of the different approaches, such as the respective cases on soldier’s funeral protests; Tiger Woods’ unremitting media coverage versus the British footballing superinjunctors; and the fortunes of Pastor Terry Jones.
It is difficult to summarise, let alone add to the daunting volume of philosophical works by American jurists who have considered the concept of free speech, from robust proponents such as Ronald Dworkin to the more sceptical such as Stanley Fish.
For my money one of the most compelling arguments in favour of the American approach is the analogy advanced by Judge Richard Posner with America’s cold war strategy. The front line against the USSR, he observes, was not the Potomac but the borders of Western and Eastern Europe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.
Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often violent, sadistic, sordid or nonsensical manifestations of speech, as with Hustler’s article or the funeral protests. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.
When deciding what is or what is not a proportionate interference with art 10, the European Courts might consider a similar perspective.