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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] Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons 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 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Comparing Free Speech: United States v. United Kingdom 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.

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