A qualified right to free speech

Part Three of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

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• The right to free speech is crucial for democracy.
• ‘Balancing’ free speech against privacy qualifies this right.
• The media have been too willing to adopt voluntary restrictions on the content of reporting.

The history of free speech

When talking about a free speech, there appears to be a collective amnesia about the importance of the word ‘free’. We should remind ourselves of the history of this democratic right.

Over two centuries ago Thomas Jefferson, one of the architects of the American Declaration of Independence, declared liberty to be a founding principle of democracy. ‘All men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.’ (1)

In 1791, the United States Congress advanced the notion of liberty in relation to free speech. A Bill of Rights was established including the First Amendment that stated no law could be made ‘abridging the freedom of speech, or of the press.’ (2)

In 1859 the English philosopher John Stuart Mill outlined the importance of a liberty of discussion in his famous essay ‘On Liberty’. He argued that if truths and errors were not ‘frequently and fearlessly discussed’, opinion would become ‘a dead dogma, not a living truth.’ (3)

Mill’s essay, ‘Law of Libel and Liberty of the Press’, argued that free speech was vital for democracy. He wrote: ‘There is no certain and universal rule for determining whether an opinion is useful or pernicious; and that if any person be authorized to decide, unfettered by such a rule, that person is a despot. To decide what opinions shall be permitted, and what prohibited, is to choose opinions for the people: since they cannot adopt opinions that are not suffered to be presented to their minds.’ (4)

These historic pronouncements should not merely serve as a reminder of the store our ancestors set by free speech. They should awaken us to the crucial importance of free speech for society here and now.

Free speech is fundamental for a democratic society. Only through critical, open debate can issues be properly raised and resolved. Free speech enables people to play a full and active role in politics and public life. Censorship, by contrast, places discussion and decision-making in the hands of the authorities.

Our attitude to free speech is also an important indicator of how we see ourselves, and each other. A society based on the notion of robust individuals who value their liberty and wish to play a role in public debate will recognise the importance of free speech. Today’s society is increasingly based on the idea of emotionally fragile individuals, in need of protection from words and images, and for whom other people pose more of a problem than the state. This is the context in which new privacy protections are brought in.

‘Balancing’ a right to free speech with any other right is undemocratic. In practice it means that how you wish to express yourself and what you wish to know is qualified by somebody else’s view of what you should think, say and inform yourself about.

Furthermore, qualifying free speech for reasons of privacy, distress or offence emasculates what freedom means. An absolute right to freedom of expression neither physically harms anybody nor deprives them of their property. Nonetheless, British law and culture is beginning to treat words and images as if they can be as harmful as physical actions.

The current approach to balancing free speech against privacy protection marks a retreat from the idea of ourselves as active, adult members of society who are capable of deciding how we wish to communicate, and pushes us towards a conception of individuals as emotional victims, whose feelings need greater protection by the authorities.

New methods of regulation

In the past five years, there has been an increasingly cautious approach to the discussion, photographing and filming of private matters. The death of Diana, Princess of Wales in 1997 prompted calls by some MPs, celebrities and journalists that the media be curbed, if not by law, then voluntarily in the interests of protecting people’s privacy.

Reformers considered that the media’s insatiable appetite for stories and photographs about people’s private life had spun out of control and something needed to be done. Some journalists argued that if libel laws were liberalised in exchange for tougher laws on privacy, this could mean that the public would hear less about people’s sex lives and more about issues of public importance (5).

All the major organisations for media standards, such the Press Complaints Commission (PCC), the Broadcasting Standards Commission (BSC) and the Independent Television Commission (ITC) have introduced new codes on privacy for journalists. Journalists have noted a new culture within newsrooms. Jasper Gerard, then diary editor of The Times (London), observed, ‘On the diary, I think we are now more cautious about how we get stories’ (6).

These codes have consequences for the degree of control a journalist has over his work. Michael Walter, a news photographer, explains: ‘Instead of the photographer acting as a news gatherer where he chooses the events, photographers will end up being commissioned by their subject which means they are more under a subject’s control…. If you apply the same principles – where the subject decides how their image is portrayed – to writing, you would effectively reduce all writers to being PR agents.’ (7)

The development of new laws and codes on privacy, designed to regulate the media, is likely only to encourage new demands for censorship. For example, when the idea of introducing a privacy law was discussed in 1997, Elizabeth Clough, then the Executive Producer of the BBC’s Rough Justice series, commented, ‘The discussion of privacy legislation will probably mean that we will see an increase in those type of complaints. Some people may think it’s easier to go to court alleging invasion of privacy, rather than using the libel laws. Any privacy legislation will provide more grounds for people to complain about the media and stop us talking to them.’ (8)

It should be noted many journalists view the development of voluntary media codes as positive. They wish to be associated with high standards of accuracy, and to ensure that a powerful industry acts with fairness. Yet while reining the media in, this situation allows the subjects of legitimate media debate to use media codes to avoid scrutiny.

For example Karen O’Connor, editor of the BBC’s Correspondent series, believes that the BBC Producer Guidelines on editorial policy are helpful to journalists. But she adds: ‘When people don’t want to talk to us they tend to employ public relations companies to engage us in a very long-winded fax war…. I’ve noticed that they tend to quote media codes from the Broadcasting Standards Commission and the BBC’s own Producer Guidelines on editorial policy back to us in a very legalistic way.’ This, she says, is happening ‘much more these days since rules on privacy became enshrined in media codes and BBC policy guidelines.’ (9)

Another development of concern to journalists is the use of confidentiality clauses to prevent inquiries into private life. Dorothy Byrne, commissioning editor of news, business and current affairs at Channel 4, commented that ‘Channel 4 has a fine tradition of investigative journalism and [we] have not been held back by privacy in particular.’

But, she says, the ‘one exception’ to that, and ‘the thing that really does worry us’, is ‘the increasing use of confidentiality clauses in people’s contracts, often with very draconian clauses attached, which are undoubtedly being used by major companies and organisation to hush up matters which should be in the public domain.’ Confidentiality clauses, says Byrne, ‘are the absolute bane of my life.’ (10)

One difficulty facing those who defend free speech in the current climate is that speech in the public domain and about public matters has become narrower in focus. The stories that cause controversy in terms of privacy often relate to trivial, personal issues, such as celebrity gossip and politicians’ sexual affairs.

Another problem is the way that free speech tends to be seen as a slogan of the right. Even those who understand the importance of free speech for their life and work tend to fight shy of mounting an unequivocal defence of this freedom, for fear of being associated with a discredited political movement.

The question perplexing many in the media is, however, in many ways a re-run of the traditional free speech dilemma. How do you disagree with much of what the papers print, yet defend to the death their right to print it?

This is part three of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

Read on:

Part Four: Free speech and trivia

Part Five: Free speech and the ‘right to know’

Part Six: Free speech and the public interest

Part Seven: The confusion over privacy

Part Eight: Privacy loses its meaning

Part Nine: Privacy, free speech and the media: some conclusions

Part Ten: Contents and acknowledgements
Part One: Restraint or Revelation? Free speech and privacy in a confessional age

Part Two: Privacy vs free speech: two competing rights?

(1) ‘Rough Draft’ of the American Declaration of Independence, in J P Boyd et al ‘Papers of Thomas Jefferson’ vol 1 (1950) p.423 quoted in ‘The Oxford Dictionary of Quotations,’ Oxford University Press, 1996, p.364 or for a copy of the original draft see Thomas Jefferson, ‘Rough Draft’ of the American Declaration of Independence, June 1776, published by the US Library of Congress

(2) Amendments to the US Constitution, adopted by a convention of the States on 17 September 1787, published by the US House of Representatives website

(3) John Stuart Mill, On Liberty and other essays, (1859, reprinted by Oxford University Press, 1998), p.40

(4) John Stuart Mill, ‘Law of Libel and Liberty of the Press’, Westminster Review III 1825, reprinted in John Stuart Mill on Politics and Society, Selected and Edited by Geraint L. Williams, (Fontana Press, 1985), p. 148

(5) Currently this appears to be happening – as privacy legislation is being developed by the courts the law on libel is under review by the Law Commission after government concern that libel law is being used to muzzle the media. See Libel laws to be reviewed, Guardian, 31 January 2002

(6) Interview with Jasper Gerard, then Diary Editor of The Times, published in Disclosure: media freedom and the privacy debate after Diana edited by Tessa Mayes, (The LIRE media group, 1998.)

(7) Interview with Michael Walter, war and news photographer, published in Disclosure: media freedom and the privacy debate after Diana edited by Tessa Mayes, (The LIRE media group, 1998)

(8) Interview with Elizabeth Clough, then Executive Producer of BBC Rough Justice, published in Disclosure: media freedom and the privacy debate after Diana edited by Tessa Mayes, (The LIRE media group, 1998)

(9) Interview: Karen O’Connor

(10) Dorothy Byrne, Commissioning Editor, News, Business and Current Affairs, Channel 4 in a speech given at a debate organised as part of the research for this report at the London School of Economics, 2001