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22 March 2013
Why Europe Needs a First Amendment
"It used to be a maxim that we could all remember where we were when we heard that John F. Kennedy had been shot. But that was fifty years ago this November. Most of us were not born when it happened."
Most readers of this piece probably do not recall, for instance, where they were when the Ayatollah Khomeini pronounced a fatwa on the British Indian writer, Salman Rushdie, because he had committed blasphemy in his novel The Satanic Verses. Yet I can recall it very clearly. It happened on the 14 February 1989. That day I was a member of a panel on press freedom at the Columbia School of Journalism in New York. An audience member broke the news to us and sought our reactions.
How did we react? I regret to say that we did not at first take it very seriously. We were naturally critical of it – how could we have not been? – but we could scarcely imagine that it was a real threat of death levelled by an Iranian religious leader in Tehran against a novelist, who was also a British citizen, living in North London. Was not blasphemy a medieval kind of offense that had simply fallen into disuse? As for the death sentence, who in modern England would carry it out? I remember making a rather feeble joke about finally understanding the meaning of literary “deconstructionism”. It did not seem real.
Today the same kind of threat would seem very real indeed. In the intervening twenty-four years we have witnessed such events as riots throughout the Muslim world over the publication in a Danish magazine of cartoons of the Prophet Mohammed; a recent attempt to murder the cartoonist; the earlier murder of Dutch film-maker (and anarchist) Theo van Gogh because he had made a feminist film critical of Islam’s treatment of women; the pursuit by Islamist fanatics of his screenwriter, Ayan Hirsi Ali, who was forced out of the Netherlands by a Dutch government and Dutch citizens more fearful of the fanatics than protective of her rights (and, not incidentally, of their own rights); the quasi-official attempts in Canada by misnamed Human Rights tribunals to fine and censor the Anglo- Canadian journalist Mark Steyn for writing about these issues – attempts which failed in this instance because he and his publisher had the courage and resources to fight them both before the tribunals and in the media; the state prosecution of Geert Wilders, the leader of a Dutch Parliamentary party, for making a film critical of Islam; the long-continuing siege of Salman Rushdie who has been living under armed guard for most of the last twenty-four years; and many other examples of attempts by Islamist fanatics to crush the free exercise of speech that they regard as “blasphemous” – and, alas, examples too of the cowardice of Western democratic governments and influential institutions in the face of such threats.
Most of the examples above are from Europe (and Canada). But America has not been untouched by such developments. The Yale University Press, for instance, published a large volume on the Danish cartoon controversy covering every aspect of it except one: the volume did not contain any of the actual cartoons it was minutely discussing. Still, it is fair to say that governments and official agencies in the US are less likely to attempt any form of censorship – and that non-governmental institutions are more likely to display courage in the face of threats – than in other Western democracies. The explanation for the first is the First Amendment which straightforwardly forbids government to make laws infringing press freedom; the explanation of the second is that this legal climate has created a broad culture of free speech in American society that, until recently at least, persuaded private institutions and individuals that they too should give the benefit of any doubt to freedom of speech and of the press. It looks as if these protections, especially the First Amendment, are indispensable supports for a liberty that elsewhere is coming under increasing threat.
Back on the 14 February 1989 in the Columbia School of Journalism, however, I was myself the main critic of the First Amendment on the platform. I was, in fact, a thoroughgoing sceptic. Why did I change? And why was I a sceptic to start with?
In the first place, I did not believe that a First Amendment – an unambiguous constitutional defence of press freedom and free speech – was necessary. To be sure, I was a strong believer in free speech. But I came from a country that was famous for its civil liberties and freedom of speech – think of Hyde Park Corner where anyone could say anything – but that had no First Amendment, indeed no written Constitution. What Britain enjoyed was a strong culture of free speech and opinion – and an almost indecently vigorous and competitive free media. When I was growing up, indeed, the sentence “It’s a free country” was very often the climax of an argument because all present agreed that, however wrong-headed the speaker’s opinion, he had an absolute right to express it. And if Britain had a free media without a first amendment, then America could do so as well. So I concluded that a First Amendment was simply unnecessary.
Second, my early impression was that the legal character of the First Amendment made its defence of free speech unreasonably rigid and extensive. Remember again that I was coming from a country which had an Official Secrets Act to a country where The New York Times had just published the Pentagon Papers – a great treasure-trove of official secrets. I was prepared to accept that there was too much concern with official secrecy in Britain. (It used to be said that the number of cups of tea drunk every day in Whitehall was an official secret protected by the Act.) But maybe there was too little protection of official secrecy in America. Governments have some level of right to protect their secrets. No less a devotee of press freedom than George Orwell had conceded the point when he wrote in the Second World War: “Obviously it is not desirable that a government department should have any power of censorship (except security censorship, which no one objects to in war time)”. And America at the time was in a hot war in Vietnam as well as a larger Cold War. Even the US Supreme Court has indicated that it might have had to condemn the Times once it had published the Pentagon Papers, but that their importance did not meet the high standard that was required if the court was to impose prior restraint.
In retrospect that judgement, and the distinction on which it rests, looks reasonable. The Pentagon Papers were politically embarrassing, but they put neither national security nor American lives at risk. All the same, the court’s judgement meant – and means today – that a government could not be certain of protecting its secrets through prior restraint. The best it might be able to manage was to punish leakers afterwards. By then, however, the damage would have been done. Everyone from the Politburo in the Kremlin to the newsboy in Times Square would know the secrets, perhaps military secrets, which Washington was trying to protect. Administrations would therefore have to rely on the good sense of the federal courts and the media, and in effect on both institutions sharing the administration’s view of national security.
That remains a problem. At the 1989 panel, one distinguished investigative journalist was completely flummoxed when a questioner from the floor asked the following question: if you had discovered in 1940 how President Roosevelt was unconstitutionally waging a secret naval war against the Nazis in the Atlantic, would you have published the information, knowing that such publication would help Hitler and perhaps bring about FDR’s downfall? He had clearly never considered the point from that angle and could not find a satisfactory answer to it. Maybe there is no satisfactory answer to it, if you believe both in press freedom and in legitimate official secrecy, merely an irresolvable conflict in principle that has to be solved on a case-by-case basis in practice. In 1989 this suggested to me that the First Amendment was both too rigid and too extensive a defence of press freedom.
My third reason for scepticism was that the Supreme Court’s recent tradition of First Amendment reasoning seemed to be a muddle – and a muddle with some damaging consequences. This muddle started with the definition of protected speech. Strict constructionists would argue that the First Amendment was designed by the Founders to protect political speech – with the conventional exceptions of libel, fighting words, and “shouting fire in a crowded theatre”. In a series of court decisions, however, the definition of protected speech was extended in two ways: first, to all speech including pornographic writing and visual representations; second, to certain classes of actions from burning the American flag to nude dancing. Judicial conservatives such as the late Robert Bork used to make the satirical point that under current interpretations it would be unlawful for college students to pray publicly before a football game, but it would be protected speech if they were to dance nude – unless they used scarves in the course of their dance since scarves have a “biblical connotation”, namely Salome’s dance of the seven veils. (The dance of the seven veils is not actually described in the Bible as such, but hey, who’s counting – apart from Salome’s audience?)
Even if we think that the First Amendment should protect more than political speech strictly defined, its history suggests that there should be some link, however tenuous, between the Amendment and encouraging diversity of political opinion. Thus, if any action can be defined as political speech, it is burning an American flag. Such an action may be an odious political opinion – I think it is – but it is nonetheless a political opinion and thus protected speech. By the same token, however, burning the Koran is also political speech and thus protected. We may well have to live with both forms of speech in a society that values freedom of speech and religious and political controversy. But there is little doubt that they will raise serious social problems.
If I could respect the logic behind the protection of flag-burning, I found myself unable to follow the court’s reasoning when it held visual pornography and nude dancing to be protected speech. I remember thinking: what is the stripper actually saying? And if we translate her words into everyday English, will not she be committing a more serious offense than merely dancing? Such fanciful judgements, moreover, had consequences: they made it impossible for communities to enforce what were once called community standards on moral issues. Or almost impossible: when New York Mayors wanted to clean up Times Square in the 1980s, they had to resort to misuse of the zoning regulations in order to do so. But such evasions are a criticism of the judicial decisions that made them necessary. To sum up, then, in 1989 I thought the First Amendment and its jurisprudence unnecessary, rigid, fanciful and destructive of neighbourhoods and community standards.
So I took some comfort from an article by Michael Kinsley, the distinguished liberal journalist, who after spending six months in London as a guest editor of The Economist magazine in the 1980s, wrote some reflections on the state of liberty in both countries. He was impressed, for example, by the fact that the state- subsidised National Theatre in London could present quite savage satirical plays caricaturing and denouncing the Thatcher government that was paying its bills, and also by the fact that nobody seemed at all surprised by this. More recently, he concluded:
“The US political system protects freedom of speech from formal suppression better than any other nation on earth. But American culture is less tolerant of aberrant views and behaviour than many others, and that tolerance has eroded further since Sept. 11. And as conservative culture warriors like to point out – or,indeed,complain(asinthepoliticalcorrectnessdebate)–asociety’snorms are set by the culture as much as by the political system. In a country like Great Britain, the legal protections for free speech are weaker than ours, but the social protections are stronger. They lack a First Amendment, but they have thicker skin and a greater acceptance of eccentricity of all sorts.”
I was inclined not only to agree with this judgement, but also to believe that the contrast was to the advantage of Great Britain. But events since the Ayatollah’s fatwa against Mr Rushdie, including that fatwa, have shown that I was wrong. And the First Amendment is a major explanation of why I was wrong.
Look, first, at culture. Mr Kinsley was right to argue that the cultural and/or social protections for free speech were strong in Britain. That was true of the Britain of my youth, but these protections were also strong when Mr Kinsley was living there. That Britain, however, had been a very homogeneous society until only a few years before. Its main religious differences were differences within Christianity, and they coexisted easily with the country’s small Jewish minority, especially after the Second World War which made even mild social anti-Semitism something to be ashamed of. What ethnic differences there were almost all originated from within the British Isles which had experienced mass internal migrations since the early modern age. The lack of anti-Irish feelings in England despite IRA bombings there during the thirty-year crisis in Northern Ireland is one important testimony to this. There were strong and passionate political differences in society, of course, but they were like passionate differences within a family. Indeed, Orwell described Britain from a left-socialist standpoint as “a family with the wrong members in control”.
The most significant such change was immigration. In 1954 West Indians arrived, to be followed by Pakistanis and East African Asians later, in large numbers. The change was initially slow because West Indians were culturally British (they spoke English, went to Christian, mainly Protestant, churches, and had been educated along English lines), and Moslem, Sikh and Hindu immigrants were too few in numbers to make much cultural impact until the 1970s. After that, however, the change accelerated quite quickly and within a relatively short time Britain began to develop into a nation fragmented into different ethnic and religious groups.
Secondly, some of these groups were not merely groups but communities – that is to say they were united around certain religious and cultural principles and practices distinct from, and arguably conflicting with, the lazily democratic ethos of post-Christian Britain. These ranged from the nature of the family, marriage and parental authority to the ultimate source of political sovereignty in society. While these communities were very small, they had little choice but to conform to the laws and regulations of the wider society. But as they grew in numbers and importance, they began to demand that their cultures should be expressed or incorporated in some way – the shorthand for this is “sharia courts” – in the nation’s laws and customs.
The third element of change was the 1960s revolution of values. This was almost a mimicry of the effects of both multiculturalism and immigration among native- born Brits. It was an internal emergence of people and groups – gays, feminists, integrated minorities, radical leftists – who felt themselves outside the mainstream of British culture and now found that they could express themselves completely freely. It was what it claimed to be: a counter-cultural revolution. With the victory of the West in the Cold War and the discrediting of communism in the aftermath, moreover, the emphasis of political debate moved from economics to cultural differences. Some of these groups entered politics, formed alliances, and became politically influential. Churches, political parties, institutions and individuals who had been guardians of the national culture, so to speak, lost moral self-confidence in the face of these different challenges. And that produced a fourth and final effect.
In Britain as in America, the ideology of multiculturalism was introduced as a response to the above changes. But this policy of accommodation had the result of strengthening these culturally separatist identities and deconstructing what were in the 1960s two relatively homogeneous nations. This fragmentation was confined to certain major cities; much of the nation was unaware of it for a long time; but in the areas where it occurred, there were growing tensions between different groups defined culturally, ethnically and politically. And though this pre-dated the work of Harvard political scientist Robert Putnam, what we were seeing was the growth of distrust between groups and within groups that Putnam reluctantly discovered to be among the effects of diversity.
Inevitably, this new moral and political landscape had an effect on the traditional ethic of free speech and the free press. For the most obvious challenge, let us return to the Khomeini v. Rushdie case. Many Muslims, for instance, believe that criticism of Mohammed should be prohibited as a form of blasphemy. But the last outing of blasphemy in British law had been in the 1970s when a conviction for blasphemy against the editor of Gay News for a poem about a Roman centurion who had sodomised the corpse of Christ was overturned. Since this was blasphemy by the most indulgent Christian standards, the law against blasphemy had been a dead letter in Britain since the late 1970s. Polls from the 1990s onward, however, suggested that quite large numbers of British Muslims believed that blasphemy should be a crime punishable by death and indeed by private executions justified by fatwas. Today there would seem to be no shortage of potential applicants for the post of Salman Rushdie’s executioner.
Threats to freedom from Islamist radicals are more dramatic and bloody than most. But threats from other groups, including government, are often more insidious. Gays in Canada and Britain, for instance, have asked the courts to suppress hostile criticism of their sexual orientation – as, for instance, quoting biblical condemnations of it in church sermons. They argue that this is insulting language that violates their equal rights. Tony Blair’s Labour government introduced legislation to restrict offensive speech directed against religions – a covert attempt to introduce anti-blasphemy laws in modern egalitarian disguise. The police and the courts in Britain increasingly treat racist and other offensive speech – including even jokes and tweets that very few people have seen – as offenses against public order deserving prison sentences. And following the recent scandals over celebrity phone-hacking by the British tabloids, all political parties are now discussing the introduction of external control of the press by a regulator backed either by law or by a lesser expression of Royal authority. Yet phone-hacking was already a criminal offense and a growing number of journalists have been convicted and are going to prison for it. It was always a pretext for an attack on the press by politicians for their own self-interested motives – and as an expression of growing hostility to free speech in modern society from the new political establishment.
Let me give three brief examples of where this hostility is leading us.
1. Section 5 of Britain’s Public Order Act has been used to arrest and imprison people for such actions as those of a protester threatening to burn an Armistice Day poppy and of a demonstrator asking a policeman if his horse was “gay”. This led to public concern and demands for changes in the law. Here is the weasel-like reply of the Home Secretary: “There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions. The Government support the retention of Section 5 as it currently stands, because we believe that the police should be able to take action when they are sworn at, when protesters burn poppies on Armistice Day and in similar scenarios”. Not surprisingly this did not allay anxieties. Eventually the government gave way when the head of the prosecuting service assured it that not many people had been arrested under Section 5 and it was not very useful. Neither official statement amounts to a robust defence of free speech.
2. Britain’s three major political parties are currently discussing two proposals in Lord Leveson’s report proposing official media regulation: that third-party pressure groups should be able to intervene in the regulatory process and that the regulator should be able to assist victims of discriminatory reporting “in the spirit of equalities legislation”. These clauses could be easily be interpreted as to enable pressure groups and political opponents to edit large parts of a newspaper, insisting on long corrective letters to the editor and specifying on which pages they would be placed. It is extraordinary that governments should be considering such officious and intrusive regulations. If these provisions became either law or practice, reporters would increasingly write in order to avoid arousing the objections of such groups. They would neuter themselves. Press freedom would gradually shrivel – and public interest stories revealing any malpractice by powerful groups would never get written.
3. The report of an EU panel proposed the establishment of “independent media panels” in all member-states. These councils should have real enforcement powers, it argued, including “the imposition of fines, orders for printed or broadcast apologies, or removal of journalistic status”. These councils would follow a set of European-wide standards and they would be “monitored” by the Commission “to ensure that they comply with European values”. Not surprisingly, the EU Commissioner who appointed the panel, Mrs Nellie Kroes praised their “concrete ideas for action” which she said were “exactly what I was looking for”. Well, yes. These are proposals for a controlled press which is to conform to values defined as “European” by governments and officials, subject to penalties that include prohibiting non-conformists from working as journalists. Calling the councils “independent” does not make the media free.
None of the above examples could long exist under a constitution with a first amendment. The conclusion that I was reluctant to draw in 1989 at the Columbia Journalism School I must now embrace. Freedom of the press and of speech cannot rely on a libertarian culture alone for support. That freedom is always going to be resented and opposed by powerful interests who fear its investigations and by those groups which value freedom (especially other people’s freedom) lower than protecting their own values and customs from criticism or mockery. Governments too have no reason to love press freedom, and they will often be able to find good excuses (protecting public order, defending “vulnerable” groups) for restraining it. And culture is itself always changing in response to social change. England’s culture of liberty, though real, is no longer seen as an unquestionably Good Thing (to quote the satirical history of England: “1066 And All That”). From a multiculturalist standpoint, it is merely a value of the “dominant” majority culture which is sometimes employed to marginalise and oppress minority groups.
Similar arguments are made in the US by left and minority groups which, for instance, would like to insist on “equal time” rules for talk radio or to expand the legal definitions of hate speech. But the First Amendment stands in the way of all such creeping official regulation of media freedom. Its admirably clear and unambiguous defence of free speech stiffens the libertarian cultural preferences of American society that might otherwise suffer the same gradual erosion as those of England and continental Europe. We need a European First Amendment and the words of the American one will do just fine.