Free speech war II

Spiked is used to getting abuse from the You-Can’t-Say-That lobby. Interestingly, we are now also being attacked by free-speech lobbyists – for publishing an uncompromising defence of free speech. And all because we used those magic letters ‘LM’.

spiked editor Brendan O’Neill’s recent essay, ‘The fight for free speech starts here‘, argued that freedom of expression is an indivisible liberty that must be defended for all, regardless of whether or not one agrees with the views being expressed. Among many other examples he observed that, when it comes to opposing the UK’s censorious libel laws, it is not enough to defend easy cases. To be consistent you also have to defend ‘hard’ cases – such as opposing ITN’s libel action, over its coverage of Bosnia, that closed down LM magazine (which I edited and a young Brendan wrote for) in 2000.

O’Neill’s suggestion caused outrage in some circles. One Michael Harris tweeted in response that ‘Brendan O’Neill has lost it, why is he bringing up LM’s disgraceful denial of genocide as an [sic] key free speech battle?’. Water off an editor’s back, you might well think, just one more bitter tweeter, etc.

Except that Harris is apparently the ‘head of advocacy’ at the high-profile lobby group Index on Censorship. In other words, he is a professional lobbyist for free speech. Yet he is appalled at the suggestion that the prosecution and closure of a small independent magazine by a major news corporation, using the worst libel laws in the Western world, should be considered ‘an key free speech battle’. Yes, it was just a throwaway tweet. But as the ad men say, sometimes little things can mean a lot.

That prominent free-speech campaigners in the UK should take such a dismissive attitude to an unambiguous defence of freedom of expression and of the press speaks volumes for the dire state of public debate. It captures the problematic attitude that Brendan O’Neill was writing about – the failure of liberal opinion to be consistent in defence of free speech. The implication of the Index on Censorship man’s claim that LM’s ‘disgraceful genocide denial’ has nothing to do with free speech is that it would be okay for the magazine to be, well, censored.

Labels such as ‘denial’ and ‘denier’ are now promiscuously tossed around to try to outlaw offensive ideas. Free speech, it seems, is now increasingly to be limited to opinions that conform to the norms of the mainstream.

When discussing libel law in this context, the magic letters are indeed ‘LM’. Mention of our libel case can somehow transform critics of the defamation laws into champions of legal action. Ours is the one case of its kind not mentioned in today’s libel reform campaigns. Indeed, many reformers implicitly or even explicitly make an exception in our case, and side with the execrable libel law against LM. Which makes it all the more important that those of us who believe in freedom of expression with no ‘Buts…’ continue to take a stand on this issue.

Contrary to claims, LM magazine was never guilty of ‘genocide denial’. But even if we had been found guilty of that by some standards, we should still have the freedom to say what we believe true without being dragged through the courts for it.

I have no real wish to revisit the ITN v LM case. Partly because the verdict means there are still strict legal limits on what can be said; mostly because, between the issuing of the writ in 1997 and the court case in 2000, it consumed three years of my life and the lives of others involved with LM. Yet whether some of us like it or not, we are continually dragged back into it because LM’s critics will not leave the case alone, and keep returning ghoulishly to pick over the bones afresh. That is why defending LM remains a keystone issue in making the case for genuine free speech and freedom of the press.

Mick Hume on the steps of the High Court after the libel verdict, with Virginia Hume (left), Helene Guldberg (right) and Thomas Deichmann (behind Hume’s right shoulder).

Two recent books written by allegedly liberal journalists who were involved in the dispute seek to renew the assault once more, and to prove (perhaps to convince themselves) that it was okay to sue and close down LM magazine. One is by Ed Vulliamy of the Guardian/Observer. The other is by Stuart Purvis, who was ITN’s chief executive at the time of the libel trial and is now, it says here, the professor of television journalism at City University, London.

Before dealing with their latest efforts at reheating old sour grapes, I had better give our readers a brief summation of what happened all those years ago. In 1992, as civil war exploded across the former Yugoslavia, there was bitter fighting between Serbs, Croats and Muslims in Bosnia. As the Western media began reporting rumours of ‘concentration camps’ and ‘death camps’, ITN sent film crews and two reporters – Penny Marshall for ITV News and Ian Williams for Channel 4 News – to investigate. Joined by Vulliamy of the Guardian, they visited two camps run by Bosnian Serbs at Omarska and Trnopolje.

The ITN team came away from Trnopolje with stunning footage of an emaciated Bosnian Muslim, Fikret Alic, imprisoned behind a barbed wire fence. Around the world, shocked media and politicians drew parallels between this picture and the infamous images of Jews behind the wire at Nazi concentration camps. As the Mirror’s frontpage headline put it, this was a picture of ‘BELSEN 92’. The Serbs were branded the new Nazis of Europe, and the escalation of Western intervention in the Balkans began that would culminate in NATO bombing the Bosnian Serbs in 1995 – the Cold War alliance’s first-ever military action – and then launching an aerial war against Serbia itself in 1999.

A few years after those striking images came out of Trnopolje camp, the German writer Thomas Deichmann raised questions about the way they had been used by many to make comparisons with Nazi concentration camps. Reviewing the unedited ITN rushes and other film shot on the day, he suggested that the Bosnian Muslims had not been surrounded by barbed wire – the camp they were in was ringed by various makeshift fencing, some of it apparently waist-high chicken wire. The barbed wire fence that formed part of the perimeter was actually an old agricultural compound next to the camp. As such, Deichmann claimed it was the ITN news team who were ringed by the barbed wire fence through which the famous pictures were shot.

Deichmann wrote about this first in the German magazine Novo, and then in the February 1997 issue of LM. That was the first issue of the relaunched magazine, previously published as Living Marxism. ITN and its journalists sued for libel. Three long and expensive years later the case finally went to trial. We lost, as defendants tend to do under the UK’s libel laws, which effectively find you guilty until proven innocent.

The trial established, through the work of LM’s legal team led by Gavin Millar, that the central fact in the LM article, about the position of the barbed wire fence, was true. As even the judge conceded, during what a veteran law reporter described as one of the most one-sided summings-up heard in the Royal Courts of Justice, ‘Clearly Ian Williams and Penny Marshall and their news team were mistaken in thinking they were not enclosed by the old barbed wire fence’, before adding in his unbiased way, ‘but does it matter?’.

In any case it was clear that facts did not matter too much under England’s repugnant libel laws. These meant we not only had to defend the words we had published, but also the implied meaning of those words as decided in court. Thus the judge emphasised to the jury that LM had to prove beyond reasonable doubt that ITN had ‘deliberately misrepresented’ the image of Fikret Alic behind the barbed wire. In fact our article never mentioned the word ‘deliberately’, nor suggested that the ITN news team had done anything of the sort. We were effectively being asked to prove the unprovable by showing what their intentions had been back in 1992 – something which, as I observed at the time, would be impossible without a time machine and a mind-reader. It was no surprise when we lost and were landed with a damages-and-costs bill of about a million pounds.

Facing the media on the steps of the Royal Courts after the verdict, I said that the only thing the case had proved beyond reasonable doubt was that the libel laws were a disgrace to democracy and a menace to free speech. We would apologise for nothing, but neither would we appeal, life being too short to waste any more of it in the bizarre world of the libel courts. More than 13 years later, I have no wish whatsoever to repeat any libels and no interest in refighting the case. Yet others still seem obsessed with it. As a consequence, the LM case has become caught up once more in the ongoing free-speech wars.

Ed Vulliamy’s latest book on Bosnia, The War is Dead, Long Live the War, is ostensibly about what he calls ‘post-conflict irresolution’ and ‘the lives of those who survived the gulag of concentration camps in north-west Bosnia and about seeking justice for Bosnia today’. He recounts many moving tales of the suffering on one side during and after the civil war. Underlying it all, however, is the sense that the ‘survivor’ the book is ultimately seeking validation for is Ed Vulliamy himself. He was one of the Western reporters who turned the Bosnian War and the demand for Western intervention into a personal moral crusade, through which they seemingly sought to resolve their own angst – in Vulliamy’s case, for example, by living up to his father’s achievements. ‘My father’, he wrote in the Guardian in April 1993, ‘had the honour of fighting fascism; I have instead the strange privilege of meeting the people who are fighting a pale but unmistakeable imitation of the Third Reich but have only the sons of the appeasers of 1938 to turn to.’

Twenty years later, Vulliamy cannot let LM’s questioning of his crusade go. In his book he brands Thomas Deichmann’s observations about the barbed wire fence at Trnopolje as ‘The Lie’ – his capital letters. According to Vulliamy, Deichmann ‘argued that the camps, especially Trnopolje, were a fabrication’. In fact, neither Deichmann nor LM ever suggested that the camps were a ‘fabrication’ at all, or that Fikret Alic had been hired from central casting. They were as real as his visible ribs. What we questioned was the way that image had been used by many to draw comparisons with the Nazi Holocaust, and hence as a moral platform from which to demand military intervention.

Vulliamy tries to dismiss Deichmann’s ‘obscure treatise’ as ‘a contorted and convoluted notion about the barbed wire fence at Trnopolje’. But there was nothing contorted or convoluted about Deichmann’s straightforward argument regarding who was surrounded by the barbed wire fence. Nor was the importance of that issue in any way ‘obscure’. As Vulliamy himself boasts in his book, the image of the emaciated Bosnian Muslim behind the barbed wire became ‘the iconic symbol of the Bosnian War, and of the decade’.

Vulliamy’s case has always been that he knows because he was there at Trnoplje in August 1992, and Deichmann wasn’t. For one who puts such store by eye-witness testimony, Vulliamy appears to have had some trouble with his memory. In his first report for the Guardian, on 7 August 1992, he stated that ‘Trnopolje cannot be called a concentration camp’ and made no mention of a barbed wire fence. By April 1993, he was recalling how he first saw the emaciated Fikret Alic ‘behind the barbed wire of Trnopolje concentration camp’. In his 1994 book, Seasons in Hell, he described Trnopolje as ‘a teeming multitudinous compound surrounded by barbed wire fencing’. In his initial vituperative response to Deichmann’s 1997 LM article, however, Vulliamy described how only ‘one of the four sides of this area was made of barbed wire. It was an existing fence on one side of the garage area which had been reinforced with new barbed wire and chicken wire.’ He knows, because he was there.

Vulliamy seems certain why we perpetrated ‘The Lie’: ‘It is plain to see that LM was served by – and servile to – Serbian military intelligence. And perhaps that is why The Lie lives on.’ This revives the old slander about LM being financed by ‘Serbian gold’. (Fortunately for some, we have never believed in suing other journalists for libel.) I pledged at the time that if anybody could find evidence of such payments, we would give them double. It never cost us a penny. The truth was LM took no side in the civil wars in the Former Yugoslavia (something certain other publications might find harder to claim). Our stand was against Western intervention, which helped to explode that conflict and prolonged and intensified it at every stage. The notion of the Serbs as the new Nazis was the pretext for demanding intervention in Bosnia. But LM, like spiked today, was always against Western intervention because it makes matters worse, whatever excuse is offered – whether it is supposed to be to protect Muslims in Kosovo or Libya, or to wage war on Islamists in Iraq or Afghanistan. Bosnia remains the foundation of the liberal interventionists’ worldview, and the image of the man behind the barbed wire their ‘iconic symbol’, which is one reason why they still cannot resist waging war on LM.

Vulliamy’s account concludes that ITN’s use of the libel law to close down LM was one of the ‘victories for truth’ in the year 2000, alongside historian Deborah Lipstadt’s success over the ‘Nazi revisionist’ David Irving in another libel case. This clumsy attempt to lump us in with Irving as Holocaust deniers rather misses a couple of points. First, it was precisely our determination to emphasise the unique crime of the Holocaust that led LM to point out the dangers of comparing the Bosnian civil war to the Nazi genocide. As I said in court, such facile comparisons can only ‘diminish its horror’. And second, it was Irving the ‘Nazi revisionist’ who sued Lipstadt, not the other way around. Both ITN and Irving sought to use the libel laws against their critics’ right to freedom of expression.

The other recent book to revisit the case against LM is in a sense a follow-on from Vulliamy’s. When Reporters Cross the Line, co-written by Stewart Purvis and Jeff Hubert, is a series of case studies of when journalists and broadcasters ‘went beyond recognised journalistic conventions’, for better or for worse. The very first chapter is entitled ‘John Simpson’, and is ostensibly about the BBC world affairs editor. But the real target is LM magazine. Purvis still seems to find it incomprehensible that we refused to apologise, and that many other journalists and media figures supported our stand on free speech grounds.

Lurking around court number 13 in tatty rainwear during the libel trial, Purvis the ITN chief executive became known as the man in the anorak. Nowadays, as a professor of television journalism, he is a top hackademic. His book begins by focusing on Simpson as an excuse for a rerun of the trial. Back then, the veteran BBC correspondent wrote a witness statement defending LM and criticising ITN’s case. The judge, Mr Justice Morland, refused to allow Simpson or any other of LM’s expert witnesses to give evidence in court, leaving Messrs Deichmann and Hume alone to face 18 ITN witnesses.

Now, however, in a newspaper review of Ed Vulliamy’s book, Simpson has recanted and apologised for supporting LM. This public plea for forgiveness gives a gleeful Purvis the pretext for trying to settle scores with LM (again). Purvis goes through his own detailed version of the story, outraged that Simpson had seen fit ‘to publicly sign up to the Deichmann interpretation of the pictures’. Yet the central point of that ‘interpretation’, that the barbed wire enclosed the news team, had, as noted above, been accepted as true by the court. Whatever reason Simpson now claims for changing his mind, nothing new has happened to alter that fact between 1992 and 2013. What has altered over those years is that freedom of expression and of the press has fallen out of fashion.

For Purvis, however, Simpson’s mea culpa is an open goal into which he can finally score some easy points against LM. Remarkably, he manages to miss most of them. I suppose some readers might be persuaded that mighty ITN really was heroically fighting for the truth by suing little LM for libel, and that this could not have been a case of David v Goliath since LM was a ‘glossy’ magazine. Others might think his admission that Deichmann’s story could have ‘damaging repercussions with [ITN’s] overseas customers’ is more to the point. Strictly business.

Purvis is clearly proud of the impact the ITN image of Trnopolje made around the world, the awards it led to, and the political clamour it sparked. He notes that Ian Williams of Channel 4 News first saw the picture of Fikret Alic and the barbed wire on video, as part of Penny Marshall’s report for ITV News, and ‘asked to use that footage alongside his own team’s images’. When he was later asked in the libel court about a newspaper article he had subsequently written regarding the barbed wire fence at Trnopolje, Williams memorably answered that ‘I was not knowingly not telling the truth’.

Purvis ends his account of the libel case with the appearance in court of ITN’s star witness, Dr Merdzanic, who had featured in the news footage from the camp. After he gave his evidence about the grim conditions in the camp, Purvis notes in triumph that LM’s barrister Gavin Millar did not question Dr Merdzanic: ‘It was a crucial moment. This was first-hand testimony from a man who had seen what really happened at Trnopolje and LM had decided not to lay a glove on him.’

But why would we have wanted to punch the good doctor who did his best to help the people in the camp? We had no argument with his account of the conditions there. If our article had been an attempt to claim that Trnopolje was really a Butlins holiday camp, they might have had a point. But it was nothing of the sort. Our argument was that, however bad things were in Trnopolje, the international attempts to compare it to Auschwitz or Belsen were dangerous and could only lead to distorting the present and diminishing the past.

All in all, When Reporters Cross the Line seems a pretty poor advert for journalism academia today. Whenever a line appears, Professor Purvis appears willing to cross it in the wrong direction – defending journalists giving evidence for the prosecution in court, revealing sources, and of course suing other journalists for libel. There is an appendix listing questions which journalists should be sure they can answer ‘yes’ to before proceeding to cross a line. It includes the question, ‘If you are self-censoring a story, can you justify this because it will facilitate an eventual greater truth?’. We can only wish the next generation of journalism students good luck with that.

LM lost the libel case, and I have no argument with the verdict; the jury could realistically reach no other decision under the law. But we don’t accept that we lost the arguments swirling around the case, about everything from the standing of the Holocaust to Western intervention – and, most importantly for today’s debates, freedom of expression and the right to publish what you believe to be true at any time.

Today, amid the creeping culture of You Can’t Say That, there is a pressing need to make an uncompromising stand for free speech. Yet as attitudes to the LM libel case continue to show, there is a reluctance to take a consistent stand among liberal voices who have forgotten (if they ever knew) George Orwell’s argument that if liberty means anything at all, it must mean the right to tell people what they do not want to hear.

In a society that claims to believe in free speech, it is only the seemingly offensive and non-conformist point of view that needs defending. The mainstream can look after itself, with a little help from the libel laws.

Mick Hume is spiked’s editor-at-large. His book, There is No Such Thing as a Free Press… And We Need One More Than Ever, is published by Societas. (Order this book from Amazon(UK).) Visit his website here.

Picture: Michael Walter/PA Archive/Press Association Images