Free Speech and The First Amendment
For this session of the Free Speech course Jo Glanville, editor of Index on Censorship gave a fascinating presentation on the First Amendment to the US Constitution and the contrast between how free speech issues are treated in the US and the UK.
Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peacably to assemble, and to petition the Government for a redress of grievances.
We in the UK don't have a principled guarantee of free speech. One consequence of this is that many cases that are prosecuted here, such as the Twitter joke trial, would have been very unlikely to have been tried in the US (in that particular case it wouldn't have passed the test of there being imminent lawless action). The UK tends to employ extreme measures to curb speech in cases which would have been overthrown by the Supreme Court if tried in the US.
This emphasis on protecting a right to extensive freedom of speech embodies key ideas about the role of the people in relation to government in the US. It both gives real protection for a range of expression that goes far beyond what we would normally describe as 'speech', but also has great symbolic importance in preserving and celebrating individuals' rights to criticise government, and a recognition that free expression is essential to a thriving democracy.
Yet despite the uncompromising wording of the First Amendment, it was only through case law in the Twentieth Century that it became the powerful force protecting free speech that it is today. The Sedition Act of 1798 was a repressive law that sanctioned imprisonment for those who defamed government and was completely inimical to the First Amendment. The modern form of the First Amendment owes a great deal to two judges of the Supreme Court: Oliver Wendell Holmes Jr and Louis Brandeis.
One area where US law is far more tolerant than that in the UK is libel (though some US writers were prosecuted for defamation in the UK, President Obama has taken action to stem this libel tourism). English PEN and Index on Censorship have been actively campaigning to improve the UK libel laws and to give us more free speech protection than we currently have - read their excellent report 'Free Speech is Not For Sale'.
Until 1964 libel was not covered by the First Amendment. But a pivotal case New York Times v Sullivan changed that. The ruling was that 'libel can claim no talismanic immunity from constitutional limitations'.
Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (New York Times v Sullivan 1964)
Fear of prosecution for defamation might have prevented such journalistic investigations as those that led to the Watergate scandal and the leaking of the Pentagon Papers. But the downside of such legislation is that it tolerates abusive and racist speech. But it has also been criticised for creating a culture where shock jocks flourish and where it is extremely difficult for public figures who may not be politicians to defend their reputation.
When celebrating the virtues of the First Amendment it is worth remembering, though, that First Amendment rights have not prevented the US from the same sorts of problems in relation to Islam and free speech that have been encountered in the UK.
But, nevertheless, the US commitment to free expression, the view that it is better to tolerate repugnant speech than censor it, that clipping anyone's freedom potentially affects everyone else's freedom, and that governments are fallible and should be open to vigorous criticism, is both admirable and enviable.
[Reminder to students - NEXT WEEK WE ARE IN THE BISHOPSGATE CENTRE]
You can download (free) a pdf of a really interesting and accessible 62-page article by philosopher Jeremy Waldron on the topic of Hate Speech and the First Amendment. This has specific references and quotations from many of the key cases in First Amendment law. Waldron opposes the view that written hate speech should have First Amendment protection.
This podcast interview with the U.S. philosopher T.M.Scanlon on free speech touches on some of the issues Jo raised in her talk (there's also a transcript of the podcast available from the same link).