Comparing Free Speech: United States V. United Kingdom Stephen J

University of Baltimore Law Forum Volume 19 Article 5 Number 2 Winter, 1989

1989 Comparing Free Speech: United States v. United Kingdom Stephen J. Shapiro University of Baltimore School of Law, [email protected]

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Recommended Citation Shapiro, Stephen J. (1989) "Comparing Free Speech: United States v. United Kingdom," University of Baltimore Law Forum: Vol. 19: No. 2, Article 5. Available at: http://scholarworks.law.ubalt.edu/lf/vol19/iss2/5

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by Professor Stephen J. Shapiro

One of the major differences between I. PRIOR RESTRAINTS article could be enjoined, and it could be the political and legal systems in the One of the major differences is the way argued that no harm is done in suppressing United States and the United Kingdom is the two countries handle attempts to re­ an article clearly found to be defamatory the existence in America of a written Con­ strain, before publication, material which and untrue. If the article were found not stitution. In Britain, Parliament is could be punished after publication. In defamatory or were found to be true, pub­ supreme; any Act passed by it is inter­ both countries certain kinds of speech, for lication would be allowed. Thus, an article preted and enforced by the courts. In the example libelous statements or release of deserving of publication might be delayed, United States, any statute passed by Con­ government secrets, may be actionable. In but could be published eventually. Under gress or by any state legislature must com­ a libel suit, the common law of Britain and the British system, therefore, an individu­ ply with the Constitution. Any statute all American states holds that if a person al's right to an undamaged reputation is that violates the Constitution will not be makes untrue, derogatory statements viewed as more important than the imme­ enforced by the courts. I about another, he or she may be forced to diate right to publish the article. This distinction is readily apparent when compensate the victim for any harm done The difference between the two coun­ one studies freedom of speech in the two to their reputation. In Britain, however, tries as to the difficulty in obtaining countries. Studying freedom of speech in unlike the United States, if the victim dis­ injunctions against publication has also the United Kingdom involves examining covered that a libelous statement was shown itself in the area of national securi­ the ways in which parliamentary acts, and about to be published, he or she might ty. In 1971, the United States Supreme to a certain extent the common law, have the publication enjoined.3 Courts in Court held that the government had not restrict free speech in such areas as obsceni­ the United Kindgom do not necessarily met its "heavy burden of showing justifica­ ty, libel, government secrets, and press make a distinction between prior restraint tion" for enjoining publication of the Pen­ reporting of trials. While American free and post-hoc punishment of improper or tagon Papers, a classified study of United speech is not absolute, and governmental illegal speech. Any impermissible speech States' decisionmaking on Viet Nam restrictions certainly exist in all of these which is subject to punishment might also policy.6 The Court has, in dicta, indicated areas, the study of freedom of speech in be subject to injunction. In the United that in very limited circumstances, such as America proceeds from an importantly States, however, even speech which may "publication of the sailing dates of trans­ different angle. Rather than studying the be punished may not normally be sub­ ports or· the number and location of actual restrictions placed on free speech, jected to prior restraint. troops"7 in time of war, an injunction one looks at the limits placed on such In the 1931 case of Near v. Jlinneso~ 4 might be issued. The Court has shown, restrictions by the first amendment to the the United States Supreme Court struck however, that it will be very difficult for Constitution.2 down an injunction which prohibited a the government to prove that publication Although there is no equivalent to the newspaper from publishing any "mali­ "will surely result in direct, immediate, first amendment in the United Kingdom, cious, scandalous or defamatory"S and irreparable damage to our nation or its the British, through a long history recog­ material. The only remedy for a libel vic­ people."8 nizing the importance of freedom of tim in the United States is to sue for In the United Kingdom, the courts have speech, enjoy some of the greatest freedom damages after the publication. In the been more willing to grant injunctions of any people in the world to write and United States, the public'S right to know is against publications containing confiden­ speak their mind. Yet, in a number of held paramount over the danger of irrepa­ tial governmental information when it is areas, methods of controlling speech used rable harm that might be done to an indi­ ·'in the national interest" to do SO.9 In a in the United Kingdom would violate the vidual. recent high-profile case, British courts first amendment in the United States. This The British system, on the other hand, is enjoined newspaper publication of the article will first examine some areas of dif­ more concerned with the right of the indi­ book, Spycatcher, the memoirs of a former ference in the control of speech in the vidual, since a person's reputation might British intelligence officer.lo The injunc­ United States and the United Kingdom. be irreparably harmed by a libelous publi­ tion was only dissolved after the publica­ Then it will examine the extent of those cation which he was powerless to prevent tion of the book in the United States had differences to determine whether they because of the restrictions on prior re­ destroyed the secrecy of its contents. The indicate a significantly different treatment straint. In Britain, a hearing could be British Official Secrets Act is a very strin­ of free speech rights or whether they are required before publication in order to gent law which makes it a criminal offense merely minor disagreements on the fringe determine if the article were libelous. If a for any government employee to divulge of those rights. hearing did find the article libelous, the any information which was ·'entrusted to ------19.11 The Law Forum-17 him in confidence"l1 even if that informa­ it was false or not. The Court reasoned racial group in Great Britain."25 Although tion is not in any way sensitive or its that libel law, even with the defense of a few successful proserutions have been release would not in any way harm the truth, deterred not only false, but also true brought under the statute, the government government. speech. Critics might be deterred from has made little use of it.26 The American government has taken a voicing even true criticism "because of One area of the law closely related to different approach to halting release of doubt whether it can be proved in court or group libel is blasphemous libel. In Eng­ confidential information by its agents. All fear of the expense of having to do SO."16 land it is a crime to insult, offend, or vilify CIA agents must sign an agreement The Court also held that public officials Christ or the Christian religion.27 In 1979, promising not to publish any information could not recover presumed damages for the Gay News was found guilty of blasphe­ gained during the course of their injuries to their reputations but must mous libel for publishing a poem and a employment, without permission of the prove actual damages before recovering. drawing portraying Christ as a homosexu­ agency. In Snepp v. United States, 12 the Subsequent cases have extended the SuI· al. The jury was instructed that any government obtained a constructive trust livan defense to cases involving public writing which in an offensive manner on all income earned by a former CIA figures l7 and, to a somewhat lesser degree, tended to vilify Christ could be a blasphe­ agent from a book he had written about private persons involved in matters of pub­ mous libel, and that the publication need the agency without its prior approval. This lic interest. 18 not amount to an attack on Christianity, holding and judgment will prove to be a The news media in the United Kingdom nor need it be proved that there was a sub­ great deterrent to such books in the future. do not enjoy nearly so broad a privilege as jective intent on the part of the accused to In another aspect involving national in the United States. For the most part, attack the Christian religion.28 security, the Thatcher government quite libel plaintiffs may recover regardless of The crime of blasphemous libel would recently has announced significant and whether the media defendant was at fault be unconstitutional in the United States. controversial press restrictions in connec­ for printing the false statement. 19 Also, if Not only would it violate the free speech tion with the Northern Ireland dispute. the defamatory statement is "calculated to clause of the first amendment, but it would Using its general power to control broad­ disparage the plaintiff in any office, profes­ also violate the first amendment religious casting, the government has banned the sion, calling, trade or business," it is not establishment clause. 29 Because the poem radio and television broadcast of the direct necessary for the plaintiff to prove :I.ctual in the British Gay News case was described statements of members of eleven named damages in order to recover.20 Newspapers as obscene, however, it might not have "terrorist" organizations, including Sinn are only granted a privilege for non­ received first amendment free speech pro­ Fein and the Ulster Defense Association. malicious libel if the defamatory state­ tection because of its obscenity if the case Such a restriction would clearly be ments are contained in a "fair and acrurate was brought in the United States. But since unconstitutional in the United States and, report" of various governmental proceed­ the poem was subject to prosecution not in fact, is currently being challenged in the ings, such as court trials or proceedings in because it was obscene, but because it was British courts by the National Union of Parliament.21 blasphemous, the prosecution would still Journalists and Sinn Fein. Group libel laws present another have violated the religious establishment interesting comparison. Such laws prohibit clause by giving special protection to the II. LmEL dissemination of derogatory information Christian religion. A second major difference between the about groups or classes of people (i.e., An interesting comparison can be drawn two countries in free speech rights is in the races or religions) which might incite on the treatment accorded Martin area of libel law. In both the United States hatred against such groups. The United Scorcese's recent film, The Last Temptation and Great Britain, libel developed as a States Supreme Court upheld a prosecu­ of Christ. Although no proserution in common law tort. Although the law has tion under such a law in Beauharnais v. Great Britain has yet been brought against been codified by Parliamentary Act in Illinois. 22 There, the Court refused to the film, that is a possibility. In the United Britain, IJ both have virtually identical ele­ require a defense that the words must con­ States, however, no proserution for blas­ ments and defenses. Until the 1960's, li­ stitute "a clear and present danger" of phemous libel could be brought to stop belous statements were not given any inciting violence because libelous utter­ distribution of the film. Yet, widespread constitutional protection by the United ances were "not within the area of consti­ picketing against the showing of the film States Supreme Court. Libel was con­ tutionally protected speech."2J has caused it not to be shown by large sidered, along with obscenity and fighting The Beauharnais case has not been movie chains in many cities, including Bal­ words, among "certain well-defined and explicitly overruled. Based on New Yark timore.JI The same first amendment rights narrowly limited classes of speech, the pre­ Times v. Sullivan and other more recent which protect the film from proserution vention and punishment of which have cases which have given a me3S).lre of consti­ here also grant picketers the right to pro­ never been thought to raise any constitu­ tutional protection to libelous statements, test against and perhaps hinder its distribu­ tional problem." 14 This doctrine regarding however, some commentators believe that tion. libel was changed in the decision of New Beauharnais is no longer good law and, York Times v. Sullivan. 15 therefore, that group libel laws are III. OBSCENITY The Sullivan decision imposed, for the unconstitutional.24 Since only a few states It is in the area of obscenity that the law first time, constitutional restrictions on have such laws and they are rarely, if ever, of the United States and the United King­ the way states applied their libel law to the invoked, no definitive answer is available dom are probably the closest. This is media. The Court held that public officials as to their constitutionality. because "obscene material is unprotected could not recover damages for defamatory The United Kingdom does have a group by the first amendment."J2 Obscenity has falsehoods relating to their official conduct libel law. The Race Relations Act of 1976 been defined by the United States Supreme unless they could prove that the state­ prohibits any person from using "threat­ Court as material which, taken as a whole, ments were made with "actual malice" - ening, abusive or insulting" words, where would be viewed by the average person, that is, with actual knowledge that it was "having regard to all the circumstances, applying contemporary community stand­ false or with reckless disregard of whether hatred is likely to be stirred up against any ards, as appealing to the prurient interest; IS-The Law Forum/ 19.2 ------which describes sexual conduct in a patent­ IV. RESTRICTIONS ON TRIAL V. CONCLUSION ly offensive way; and which lacks serious PUBliCITY Any comparative law study necessarily literary, artistic, political, or scientific One final area where British restrictions concentrates on the differences between value.33 Unlike libelous publications, on the press would probably violate the the law of two countries, rather than the which may be punished but not en­ United States Constitution is the control similarities. This may exaggerate any joined,34 obscene publications may be en­ of pretrial publicity. In the United differences that may exist. By giving joined.3s In fact, the United States Kingdom, any publication about active examples of British laws which violate the Supreme Court has upheld a system court proceedings which "creates a American first amendment, it may seem requiring all films to be submitted for substantial risk that the course of justice in that there is significantly less freedom of examination to determine whether they the proceedings in question will be speech in the United Kingdom. It is easy to are obscene before receiving the necessary seriously impeded or prejudiced" is lose sight of the fact that Britons historical­ 36 license to be shown. Such "censorship" prohibited and may be punished as a ly have, and still do, exercise some of the would clearly not be allowed in other areas criminal violation.44 General discussions broadest free speech rights of any people of speech, but it is closer to the general of matters of public interest are not on earth, especially in their ability to British approach to regulation of speech. prohibited, however, merely because a criticize the government, a most In England obscenity is basically con­ trial is going on involving the same subject important bellwether of free speech rights. trolled by the Obscene Publications Act of matter.4S For example, an anti-abortion Our American concept of free speech 1959.31 The test for obscenity contained in article appearing during the trial of a developed directly from the British, and in the Obscene Publications Act is somewhat doctor for an illegal abortion was held not many important respects, the free speech different than the American definition. to be a violation, since the doctor's specific rights exercised in both countries are quite The Act defines material as obscene if its case was not mentioned and any threat of similar. effect, taken as a whole, is "to tend to prejudice was deemed "merely It is important to note that in each of the deprave and corrupt" persons who are 38 incidental."46 Fair and accurate reports of areas studied in this article, it is not the likely to read, see or hear it. There is a public legal proceedings are also protected. case that the United Kingdom allows defense if the publication is "justified as The prohibition applies to published facts controls over a particular kind of speech being for the public good on the ground about a specific case between the time of whereas that same speech is given absolute that it is in the interests of science, litera­ arrest and the time of sentencing (the Act protection in the United States. In spite of ture, art or learning, or of other interests applies to civil as well as criminal cases). of general concern."39 Obscenity is regu­ the absolute-sounding language of the first The rationale is to avoid prejudice to the amendment, it has never been so lated differently in Scotland because the defendant which would occur if the jury Obscene Publications Act does not apply interpreted. In the United States, some were to read or hear facts concerning the controls are allowed in the areas of libel, there. Since this act does not apply to Scot­ case, other than those presented in court. land, other laws, including the recently government secrets, obscenity, and trial The Act does not actually prohibit reporting. In all these areas, a balance must developed common law offense of shame­ publication of all facts about a case, but lessly indecent conduct, apply there.40 be struck between allowing free discussion only those which would seriously and preventing harm to individuals or the Where the United States and England prejudice the trial. Most newspapers, differ is their treatment of pornography, as public. The balance has been struck in however, in order to be on the safe side, some cases at a different point in Great opposed to obscenity. Ordinances recently publish virtually nothing except the actual passed in several American cities have tried Britain than in the United States. Most of testimony presented in court until a those choices, however, seem to be a to control pornography, which is general­ criminal trial is concluded. ly defined as "the graphic sexually explicit legitimate, albeit different, balancing of This procedure is contrary to the rights, rather than merely an illegitimate subordination of women, whether in pic­ American practice, especially in attempt to stifle debate or to protect the tures or words."41 Such an ordinance has sensational trials, of publishing every bit of government from criticism. been held unconstitutional by the Court information obtained about the case. It is the author's viewpoint that British of Appeals for the Seventh Circuit because Although there is concern in the United it regulates the content of speech, by man­ law seems to have gone astray in the area 42 States about the effect of such pretrial dating a preferred viewpoint of women. publicity, no blanket prohibition such as of blasphemous libel because it controls Although the court accepted the proposi­ the British Contempt of Court Act is speech for reasons other than protecting tion that pornography has the effect of permitted. Instead, any prohibition on against actual harm. Unlike ordinary libel, encouraging those who see it to commit pretrial publicity must be issued by the which protects an individual from the acts of violence against women, the court judge on a case by case basis. Although the harmful effects of untrue statements, the rejected the idea of trying to control the courts have stated that the purpose of behavior of persons by controlling the United States Supreme Court has recognized the dangers to a fair trial blasphemous libel is to protect "a ideas which they read and see. In England, Christian's feelings" from insult.49 This however, the Obscene Publications Act, because of too much publicity,.7 it has also severely restricted a judge's right to issue does not seem to be a valid reason to with its "tend to deprave and corrupt" lan­ control speech. It must be remembered, guage, seems to be directed at the effects "gag orders" prohibiting dissemination of information about a case. The Court has however, that historically in the United the pornography has on the observer. States, obscenity has not been subject to Therefore, without the first amendment not completely eliminated the use of such control because of proof of actual harm to protection of the content of speech, the orders, but has required that a very heavy English Act seems broad enough to accom­ burden be met before they can be imposed persons, but because it was "without plish the regulation of pornography which and that they be as narrowly tailored as redeeming social importance."so was denied the City of Indianapolis. It has, possible,,8 Other steps to avoid prejudice, The most important difference between in fact, been used against material portray­ such as jury sequestration or change of the two countries is the much greater ing violence and other material which venue, must be attempted before the judge difficulty there is in the United States to would not be held obscene in the United may consider issuing even a narrow gag restrain, rather than punish, publication, StateS.43 order. regardless of the grounds. If one is willing ------19.21 The Law Forum-19 to take the risk of punishment, an individ­ 8 New York Times, 403 U.S. 713, 730 (1965) 1 All E.R. 159, (1965) 2 W.L.R. ual will always be able to communicate his (1971) (Stewart, J., concurring). 138 (book glorifying drug use). or her ideas. The public will have the bene­ 9 Attorney General 'tI. Guardian Newspa­ 44 Contempt of Court Act of 1981 (c. 49) fit of the information even if the speaker is P(!l's, 2 W.L.R. 805 (1988). § 2(2). eventually punished. It is also important to 10 See Attorney General'tl. Guardian News- 45 Id at § 5. note that any punishment (either criminal papers, 1 W.L.R. 1248 (1987). 46 Attorney General'tl. English, (1982) 2 All or in the form of civil damages) will be 11 Official Secrets Act of 1911 (c. 28). E.R.903. meted out by a jury, whereas injunctions 12 444 U.S. 507 (1980). 47 Sheppard 'tI. Maxwel~ 384 U.S. 333 are granted by judges. One should not lose 13 Defamation Act of 1952. (1966). sight of the fact, however, that there is 14 Beauharnais 'tI. Illinois, 343 U.S. 250, 48 Nebraska Press Ass'n 'tI. Stuart, 427 U.S. some cost to the system used in the United 255-56 (1952). 539 (1976). States. If an individual is punished for 15 376 U.S. 255 (1964). 49 R. 'tI. Lemon, (1979) A.e. 617, 1 All E.R. speech that could not be restrained, this 16 Id at 279. 898, 2 W.L.R. 281. means that someone's rights may have 17 Curtis Publishing Co. 'tI. Butts, 388 U.S. 50 Roth'tl. United States, 354 U.S. 476, 484 been violated by the speaker. Unlike the 130 (1967). ( 1957). The Roth Court specifically British, America is willing to take this risk 18 GertZ'tl. Robert Wekh, Inc., 418 U.S. 323 rejected the argument that obscenity in order to maximize the free exchange of (1974). could only be outlawed if shown to ideas. 19 Defamation Act of 1952. cause antisocial conduct of some kind. Given that Britain does not have a pro­ 20 Id at Section 2. tection for free speech akin to a first 21 Id at Section 7.1. amendment, it is noteworthy that Parlia­ 22 343 U.S. 250 (1952). ment has chosen not to impose more con­ 23 Id at 266. trols than it has in the area of free speech. 24 See J. Nowak, R. Rotunda & J. Young, SUMMER lAW PROGRAM IN The first amendment is still important, Constitutional Law, 925-26 (3rd Ed. ABERDEEN, SCOTlAND however, even though the United King­ 1986). But see Lasson, Racial Defamation dom, without one, does not suffer signifi­ as Free Speech: Abusing the First Amend­ Professor Shapiro taught in the Sum­ cantly less rights of free speech than the ment, 17 Colum. Hum. Rts. L. Rev. mer Law Program in Aberdeen, Scot­ United States. It is important to remember (1985). land, this past summer. The Summer that just because Parliament has chosen to 25 Race Relations Act of 1976, Ch. 74. Law Program is sponsored jointly by exercise self-restraint in this area, there is 26 Lasson, Racism in Great Britain: Draw­ the University of Baltimore and the no guarantee that it will continue forever ing the Line on Free Speech, 2 B.C. Third University of Maryland. It provides to do so. It is conceivable that it could suc­ World L. J. 161, 171 (1987). American law students the opportuity comb to political pressure to stifle debate 27 R. 'tI. Lemon, 3 W.L.R. 404 (1978), affd, to study comparative law for six weeks and, in that circumstance, there would be 2 W.L.R. 281 (1979). at the University of Aberdeen, one of no document binding on them that would 28 Id the oldest and most beautiful universi­ prohibit it. One can only imagine what 29 "Congress shall make no law respecting ties in Great Britain. American society would be like without an establishment of religion .... " U.S. Courses are team-taught by members the restrictions of the first amendment. It Const., amend. I. of the University of Baltimore and is possible that American legislatures, in 30 See text at infra note 32. Maryland faculty, along with faculty that instance, would not show as much 31 Baltimore Sun, Sept. 29, 1988, at C1. members of the University of Aber­ self-restraint as Parliament and, therefore, 32 Miller'tl. California, 413 U.S. 15 (1973). deen. This article grew out of material significantly greater controls on speech 33 Id at 24. presented in a course entitled Compara­ could exist in this country than presently 34 See text accompanying supra notes 3-5. tive Civil Rights and Civil Liberties exist in Britain. 35 Kingsley Books 'tI. Brown, 354 U.S. 436 taught by Professor Shapiro and three (1957). members of the University of Aberdeen 36 Times Film Corp. 'tI. Chicago, 365 U.S. 43 faculty. The course compared freedom NOTES (1961). of speech, freedom of religion, and 1 Marbury'tl. Madison, 5 U.S. (1 Cranch) 37 Obscene Publications Act of 1959 (c. employment discrimination laws in the 137 (1803). 66). United States and the United Kingdom. 2 The first amendment prohibits Con­ 38 Obscene Publications Act of 1959 (c. The author wishes to thank Professor gress from "abridging ... the freedom of 66) § 1. Colin Reid of the University of Aber­ speech, or of the press. . .. " U.S. 39 Obscene Publications Act of 1959 (c. deen for his assistance in preparing the Const. amend. I. 66) § 4. article. 3 Waddell'tl. B.B.C, 1973 S.L.T. 246. The 40 See Watt 'tI. Annan, 1978 S.L.T. 198, The Summer Law Program will be Court eventually removed the injunc­ 1978 J.e. 84. held this year from June 27 through tion because it found that the plaintiff 41 Indianapolis Code § 16-3(q). August 4, 1989. The courses for this had consented to the publication and 42 Am(!l'ican Booksellers Assoc. 'tI. Hudnut, summer's program will include Com­ because the balanre of convenience did 771 F.2d 323 (7th Cir. 1985), affd, 475 parative Criminal Justire and Profes­ not favor the plaintiff. U.S. 1001 (1986). sional Responsibility: Comparative 4 283 U.S. 697 (1931). 4J Director of Public Prosecutions 'tI. A. & Legal Professions. Cost of the program 5 Id at 706. B.C Chewing Gum, (1968) 1 Q.B. 159, is approximately two thousand dollars 6 New York Times 'tI. United States, 403 (1967) 2 AU E.R. 504, (1967) 3 W.L.R. for tuition, program fees, and room and U.S. 713 (1971). 493 (chewing gum cards portraying board. Students interested in participat­ 7 Near 'tI. Minnesota, 283 U.S. 697, 716 violent battle srenes);John Calder Publi­ ing should contact Dean Laurence Katz, (1931). cations 'tI. Powel~ (1965) 1 Q.B. 509, at the University of Baltimore. 20-The Law Forum I 19.2 ------