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Defamation of ‘government’: taking lessons from America?

Published online by Cambridge University Press:  02 January 2018

Ian Loveland
Ian Loveland*
Affiliation:
Queen Mary and Westfield College, University of London
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Extract

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 2 , July 1994 , pp. 206 - 225
Copyright
Copyright © Society of Legal Scholars 1994

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References

1 [1993] 1 All ER 1011.

2 ‘Libel and Freedom of Speech in English Law’ [1993] Public Law 449, 463.

3 Rose ‘Silent Revolution’ (1993) Observer, 9 May.

4 [1993] 1 All ER 1011 at 1019.

5 [1990] 2 All ER 103 at 106.

6 (1923) 139 Northeastern Reporter 86.

7 (1964) 376 US 254. He referred also to South African case law, though quite what relevance one should attach to this is unexplained. If, as Lord Keith says, public policy favours free speech on political matters as a means for the citizenry to call government to account, one assumes that no lessons can usefully be learned from a society in which, even pre-apartheid, the majority of the population had no right to vote.

8 The judgment did appear to accept a council might sue in respect of its ‘trading’ rather than ‘governmental’ functions, but this seems a specious distinction. See Barendt above, n2.

9 For a Compelling illustration of this point, in the admittedly extreme contexts of the rise of fascism in Germany and France, see Riesman, Democracy and Defamation: Fair Game and Fair Comment 11’ (1942) 42 Google ScholarColumbia LR 1282.

10 Schauer Free Speech: A Philosophical Inquiry (1982) ch 3. For an analysis of Schauer's views in a more distinctively British legal context see Barendt Freedom of Speech (1987)ch 1.

11 At this point the ‘argument from democracy’ merges almost imperceptibly with the ‘argument from truth’; Schauer op cit, n 2 ch 2. The problem is not one that is limited to the realms of law, politics or morality. TS Kuhn's analyses of scientific development reveal a similarly unstable and elusive notion of ‘objective’ knowledge; see Kuhn The Structure of Scientific Revolutions (1962) esp ch 10; The Essential Tension (1977) esp chs7, 13.

12 (1919) 249 US 47; 63 L Ed 470.

13 An equally powerful judicial statement of the position is offered by Brandeis J's concurring judgment in Whitney v California (1927) 274 US 357. The argument is not restricted to the First Amendment alone. John Hart Ely's celebrated critique of the United States' constitution (1980) Democracy and Distrust contends (controversially) that the Framers’ concern centred almost entirely on matters of process, rather than the protection of particular ‘substantive’ values.

14 Schenk v United States (1919) 249 US 47: Debs v United States (1919) 249 US 529: Abrarns v United States (1919) 250 US 616: Gitlow v New York (1925) 268 US: Whitney v California (1927) 274 US 357. For contemporaneous and retrospective comment see respectively; Chafee ‘Freedom of Speech in War Time’ (1919) 32 Harvard Law Review 932: Kairys ‘Freedom of Speech’ in Ollman and Birnbaum (eds) The US Constitution (1990).

15 (1964) 379 US 64 at 75.

16 See Rosenblatt v Baer (1966) 383 US 75: Time Inc v Hill (1967) 17 L Ed 2d 456.

17 It also reflects a concern that is not pertinent to the British situation, namely maintaining an effectively federal form of government.

18 Cf the argument made by Riesman ‘Democracy and Defamation: Control of Group Libel’ (1942) 42 Columbia LR 727, 731; ‘In the political as in the economic struggle, modem democracy operates through the interplay of group activities, and it is through participation in groups that persons contribute to the social welfare and develop their individual capacities’.

19 [1993] I All ER 1011 at 1017–1018.

20 Ibid at 1020.

21 Jenkins ‘The Green Sheep in Colonel Gaddaffi Drive’ (1987) New Statesman. 9 January.

22 For a current example of such blatantly inaccurate ‘reporting’ see Coles ‘Tabloids Exposed over Loony Tales of a Labour Council’ (1993) Guardian, 19 November. Amore celebrated critique is Jenkins op cit n 21.

23 See the concurring judgment of Burger CJ in Dun and Bradstreet Inc v Greenmoss Builders (1985) 472 US 749 at 764–774.

24 Alder ‘Hunting the Chimera — the End of O ‘Reilfy v Mackman’ (1993) 13 LS 183.

25 Loveland ‘An Unappealing Analysis of the Public/Private Divide: the Case of the Homelessness Legislation’ (1993) Liverpool LR 39: Cowan ‘The Public/Private Dichotomy and “Suitable Accommodation” under s 69(1) of the Housing Act 1985’ (1993) Social Welfare and Family Law 236: Bamforth ‘The Scope of Judicial Review: Still Uncertain’ [1993] Public Law 239.

26 R.v. Jockey Club, ex p Aga Khan, (1992) The Times, 9 December.

27 This reasoning would not apply in the USA, where since libel is a tort, lawyers may operate on a no-win no-fee basis.

28 The most significant development being that party primary elections, long used in the South to exclude blacks from the electoral process, have been designated as public rather than private issues, and so brought within the ‘state action’ limits of the Fourteenth; see Woodward The Strange Career of Jim Crow (1966) ch 3: Smith v Allwright (1946) 321 US 649; Terry v Adams (1953) 345 US 461.

29 (1971) 401 US 265; 28 L Ed 2d 35.

30 Ibid at p 271.

31 Ibid at 272.

32 Ibid at p 277.

33 (1966) 383 US 75; 15 L Ed 2d 597.

34 Ibid at 84.

35 Ibid at 89.

36 (1971) 403 US 29; 29 L. Ed 2d 296.

37 Ibid at 41–42.

38 (1967) 388 US 130; 18 L Ed 2d 1094.

39 (1974) 418 US 323; 41 L Ed 2d 789.

40 Ibid at 347.

41 Burger C.J. also argued that a lawyer (and one assumes also a doctor, or accountant) should not be ‘infected’ with her client's ‘publicness’. Identifying the lawyer with her client would in effect ‘chill’ the vital public policy interest of the right to counsel; lawyers might avoid controversial cases if by so doing they became ‘fair game’ for the press.

42 See Lord Diplock in Greaves v Deakin [1980] AC 477. Greaves tells us that a libel must be ‘serious’ before it becomes a criminal offence, but beyond confirming that an imminent breakdown in public order is not necessary to found ‘seriousness’, the case offers little precise guidance.

43 Barendt Freedom of Speech (1987) pp 187–188.

44 It may indeed be that civil liability could inflict a far more onerous penalty than a criminal conviction, but that need not necessarily be so, and furthermore, losing a civil suit may not bear the same kind of stigmatising effect as being convicted of a crime.

45 (1964) 379 US 64; 13 L. Ed 2d 125. Garrison is the district attorney recently popularised by Kevin Costner in Oliver Stone's JFK. Garrison's complaint was directed at members of the Louisiana judiciary, whom he had accused of being corrupt, inefficient and excessively fond of overlong vacations.

46 Ibid at 76–77.

47 See Brazier Street on Torts(1993) pp 138–140.

48 Joyce v Sengupra [1993] 1 All ER 897.

49 One assumes that a court would not look kindly on claims that the individuals believed that occupancy of such office would provide with the skills or contacts which would in future enable her to gain more lucrative employment.

50 See Sunday Times v United Kingdom 2 EHRR 214 at para 41.

51 [1993] 1 All ER 1011 at 1020.

52 (1971) 403 US 29; 29 L Ed 2d 296.

53 (1974) 418 US 323.

54 This latter option is likely to be ineffective even if available, since newspapers which take opposing views on matters of political controversy will not reach the same readers, and each may be presumed to some extent to be ‘preaching to the converted’.

55 [1990] 1 AC at 283.

56 The classic statement of the orthodox position being of course Wade ‘The Legal Basis of Sovereignty’ (1955) Cambridge Law Journal 172. For critiques of varying degrees of unorthodoxy see Fazal ‘Entrenched Rights and Parliamentary Sovereignty’ [1974] Public Law 295: Dike ‘The Case Against Parliamentary Sovereignty’ [1976] Public Law 283.

57 (1845)44 US 266; 11 L Ed 591.

58 The location is important, for it was not until 1925, in Gitlow v New York (268 US 652), that the Supreme Court accepted that any aspect of the First Amendment extended to the States.

59 At 875.

60 Number 15.

61 Cited in Post ‘Racist Speech, Democracy and the First Amendment’ (1991) vol 32 William and Mary LR 267, 281.

62 See Cortner The Supreme Court and Civil Liberties Policy (1975) pp 1–6.

63 Cf Brennan J. in Garrison v Louisiana (1964) 379 US 64 at 75: ‘speech concerning public affairs is more than self-expression; it is the essence of self government’.

64 A sentiment perhaps best expressed by Brennan J. in Time Inc v Hill (385) US 374 at 389; ‘sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of us all. A broadly defined freedom of the press assures the maintenance of our political system and an open society’.

65 My thanks to John Bell and the reviewer who read an earlier version of this paper for bringing this point to my attention.

66 See Turpin British Government and the Constitution (2nd edn, 1990) pp 44–51.

67 The classic example being the reversal of Burmh Oil v Lord Advocate [1965] AC 75 by the War Damage Act 1965.

68 Thompson and Game ‘Section 137: Propaganda on the Rates’ (1985) Local Government Studies 9: Willmore ‘Letting People Know’ (1988) Municipal Review (August/September) 124: Franklin ‘Civic Free Newspapers-Propaganda on the Rates’ (1988) Local Government Studies (May/June) 35.

69 Brockington ‘Confessions of a Head Boy’ (1990) Municipal Journal (February) 20. The provisions in the Local Government Officers (Political Restrictions) Regulations 1990 (SI 1990 No 851) were subject to challenge in R. v. SOSE and Another, ex parte NALGO and Others, CA, unreported. 26 November 1992. NALGO attacked the regulations on the basis that they were alternatively or cumulatively an irrational or disproportionate exercise of the power afforded to the Secretary of State by the Local Government and Housing Act 1989, s 1, or that they breached art 10, ECHR. Whether the regulations would survive scrutiny under art 10 or the First Amendment is an interesting hypothetical question of comparative free speech law to which noone has yet offered an answer.

70 Albeit not without some difficulty; see particularly Barendt Freedom of speech (1987) chs III and XI.

71 Local Government Studies 59; Local Government in the Modem State (1986) ch 3: Stallworthy ‘Central Government and Local Government: the Uses and Abuses of a Constitutional Hegemony’ (1989) 60 Political Quarterly 22.

72 Academic critiques of the desirability of placing legal controls on the internal management and fundraising activities of political parties are poorly developed in this country; the leading contribution in the field is perhaps Oliver ‘The Parties and Parliament: Representative or Intra-Party Democracy’ in Oliver and Jowell (eds) The Changing Constitution 1989. 2nd edn).

73 Ibid p 464. One might however wonder if disseminators of information could incorporate the ECHR through their own efforts. One might speculate how Derbyshire would have been resolved had The Sunday Times raised a concern that the council's dealings with Mr Oyston might mean that the council's ex-employees would find that their pensions were affected in a gender discriminatory way. It is settled law that EC directives are directly effective against local authorities; that pension provision is within the remit of the Equal Pay Directive; and that domestic courts must de facto resort to the ECHR via the de jure mechanism of the ECJ's ‘general principles of law’ when evaluating their member state's response to its EC law obligations. Does this sequential logic demand that English courts would have to resolve any libel action brought by a council employee in respect of such accusations in a manner consistent with art 10, ECHR?

74 It may however be that our courts will look to the recent example set by their Australian counterparts, which (invoking United States' First Amendment jurisprudence) have contrived to fashion supra-legislative constraints in respect of free speech out of what seems little more than constitutional thin air; see Ewing ‘New Constitutional Constraints in Australia’ [1993] Public Law 256: Lee ‘The Australian High Court and Implied Fundamental Guarantees’ [1993] Public Law 606. Whether a British court's decision to follow such antipodean innovations would be considered any more legitimate than direct importation of American or ECHR ideas is a matter for speculation.

75 The most compelling example of a nominally sub-legislative judiciary invoking considerations of constitutional morality to frustrate legislative intentions is perhaps the controversy surrounding the patriation of the Canadian Constitution in 1982; see Reference re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1; for discussion see Turpin British Government and the Constitution (2nd edn, 1990) pp 102–115. Students of the British constitution who are nurtured on the formalist orthodoxy that ‘conventions’ cannot become ‘laws’, and that common law rules are invariably subordinate to Parliamentary wishes, might usefully be referred to the more functionalist critique offered in Allan ‘Law, Convention, Prerogative: Reflections Prompted by the Canadian Constitutional Case’ [1986] Cambridge LJ 305.

76 The paradimatic examples being perhaps Chief Justice John Marshall's ‘creation’ of the doctrine of judicial review in Marbury v Madison (1803) 1 Cranch 137) and the European Court of Justice's ‘creation’ of the doctrine of direct effect in Van Gend en Loos [1963] ECR 1. Weiler' s seminal analysis of this issue in respect of the ECJ is perhaps capable of far wider application; ‘The Community System: the Dual Character of Supra-Nationalism’ (1981) Yearbook of European Law 267. For a first foray in that direction see Craig ‘Once Upon a Time in the West: Direct Effect and the Federalisation of EEC Law’(1992) 12 OJLS 453.

77 For some indication of the scope of such ambition see Lord Browne-Wilkinson ‘The Infiltration of a Bill of Rights’ [1992] Public Law 397: Glidewell LJ. ‘English Administrative Law: Past Present and Future’ (1993) Liverpool LR 3: Sir John Laws ‘Is the High Court the Guardian of Fundamental Constitutional Rights’ [1993] Public Law 59. Sir John Laws has latterly taken a second step; ‘Judicial Remedies and the Constitution’, 57 Mod LR 213.