Martin Chuzzlewit, in the Dickens novel, crosses the Atlantic in a packet boat. When it reaches New York, newsboys come aboard shouting out the latest in their papers: the New York Sewer, the Stabber, the Plunderer and so on. ‘Here’s the Sewer’s exposure of the Washington gang,’ one cries, ‘and the Sewer’s exclusive account of a flagrant act of dishonesty committed by the Secretary of State when he was eight years old, now communicated, at a great expense, by his own nurse.’ No one but Dickens could make the point with such extravagant gusto. But others felt a distaste for our press then, and do now. How self-righteous it can be, and how outrageous. Today Americans would add: how powerful. Our papers no longer have to retail fancies of the crimes committed by political leaders in childhood. We have a press that exposes real official wrongs: a press which helped to force a President from office and which has pushed candidates out of the present campaign for the White House. That kind of press arouses resentment: hardly a surprise. ‘The press is the enemy,’ President Nixon instructed his staff. Politicians less prickly than he have felt victimised by the press. And resentment does not come only from the victims. Among the public, too, there is a feeling that the press has grown arrogant. ‘Who elected you?’ people ask.
Why should a self-appointed group have the power to root about in our national life, exposing what they deem ripe for exposure? The American press would say the Constitution of the United States answered that question. The Framers made the choice when they put in the First Amendment the command: ‘Congress shall make no law ... abridging the freedom of speech, or of the press.’ Those are sweeping words. But the First Amendment is not what some in my profession assume it is: a declaration that the press must always prevail in any legal contest, that journalists are a preferred class. The purpose of the clause assuring the freedom of the press was not to serve the interest of editors and publishers: it was to serve the interest of society. So the great cases teach. Even in a country whose fundamental law explicitly protects the freedom of the press, that freedom is seen in a larger social and political framework.
On 29 March 1960, the New York Times carried an advertisement with the heading, ‘Heed Their Rising Voices.’ It was what we call ‘message advertising’, seeking support for the Civil Rights movement in the South and in particular for Martin Luther King. The text deplored what the Police and other elements of the then dominant white segregationist forces in the South had done to peaceful protesters against racial discrimination. It said that Dr King had been arrested seven times and his home bombed, that black students in Montgomery, Alabama had been expelled after singing ‘My country, ’tis of thee’ on the steps of the State capitol. The advertisement named no names among the forces it criticised. But a commissioner of the city of Montgomery, L.B. Sullivan, claimed that it would be taken as reflecting on him because he was in charge of the local police. He brought an action for libel, seeking $500,000 in damages. The Times could not offer the defence of truth, because it found that the ad was inaccurate in some particulars. Dr King had been arrested four times, for example, not seven; and the students had sung not ‘My country, ‘tis of thee’ but ‘The Star-Spangled Banner’. At trial in Alabama the judge found the ad ‘libellous per se’. He instructed the jury to bring in a verdict for Mr Sullivan if it found that the advertisement was ‘of and concerning’ him. It did, awarding him all he had asked – $500,000.
Four other Alabama politicians brought libel actions over that advertisement. They sought $3 million in damages, and there was every reason to expect juries to award that amount in total. The survival of the Times, then a marginally profitable newspaper, was at risk. Moreover, other libel actions were brought against the Times, broadcast networks and national magazines over news reports on the South. It was plain that the hallowed Common Law action for libel was being used for a new purpose: a political purpose, to frighten national news organisations out of covering the racial struggle. It is only twenty-five years ago, but we can hardly remember conditions in the American South then. Blacks were barred by law – law that had been found unconstitutional but was still enforced – from attending schools with whites or entering most hotels or eating at lunch counters. In large parts of the South blacks were kept from voting by intimidation and trick and murder. It may indicate the atmosphere if I tell you that the New York Times had great difficulty finding a lawyer in Alabama who would represent the paper in the Sullivan case. When one did agree to take the case, and he invited the Times’s New York lawyer down to discuss it, he booked the visitor into a motel forty miles away under an assumed name.
Would it have mattered if the national press had been scared off by those libel actions and had stopped paying close attention to the racial conflict? I think it would have made a great difference. Most Americans were not aware of the cruel reality of racism until the news reports of the Fifties and Sixties confronted them with it. Professor Alexander Bickel of the Yale Law School wrote that television coverage of mob resistance to school desegregation brought concretely home to viewers what the abstract idea of racial segregation meant, ‘Here were grown men and women,’ he said, ‘furiously confronting their enemy: two, three, a half-dozen scrubbed, starched, scared and incredibly brave coloured children. The moral bankruptcy, the shame of the thing, was evident.’ Americans reacted politically to what they saw and read. Congress passed laws that utterly changed the South, so that blacks now vote freely and hold political office – and it is a region that looks to the future instead of the past. It was an astonishing social change, and it happened in part because the press performed its function.
The press was able to keep covering the Civil Rights movement because the Supreme Court set aside the libel judgment for Mr Sullivan. That may sound easy to do: a huge sum, awarded because of trivial errors in the text to a man not mentioned in an advertisement. But the Supreme Court has no power to review the decisions of State courts on matters of State law. It can only correct them when they run foul of the Federal Constitution. And libel had always been considered a matter for State law. In 170 years the First Amendment had never been held to apply to libel cases. Counsel for the Times in the Supreme Court, Professor Herbert Wechsler of the Columbia Law School, met that challenge of history by himself calling on history. He reminded the Court that in 1798 Congress had passed a Sedition Act making it a crime to publish false criticism of the Government or its leaders – and that James Madison, the principal author of the First Amendment, had condemned the Act. It was a violation, he said, not only of the freedom of speech and press but of the whole premise of our new Constitution: that the people were to make the ultimate political judgments. Madison said the Sedition Act threatened ‘the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right’. Professor Wechsler relied on that early statement of the centrality of free political speech in a free society. He said that this libel action suppressed the freedom as effectively as a direct prohibition on speech or publication about the racial issue. ‘This is not a time – there never is a time – when it would serve the values en-shrined in the Constitution,’ he told the Court, ‘to force the press to curtail its attention to the tensest isues that confront the country.’ The Supreme Court agreed. In an opinion by Justice Brennan, it held that the First Amendment allowed robust and uninhibited speech about political life, including even unpleasantly sharp attacks on those in office, and that inadvertent mistakes in such political criticism could not be the basis of libel judgments.
The American press celebrates the case of ‘New York Times’ v. Sullivan as its greatest legal victory in modern times. But it was not a press case in the narrow sense. The crux o Justice Brennan’s opinion is in a passage noting that, under our law, officials are broadly immune from libel actions for what they say in the course of their duties, the purpose being to encourage vigour in their performance. ‘Analogous considerations,’ Justice Brennan said, ‘support the privilege for the citizen-critic of government. It is as much his duty to criticise as it is the official’s duty to administer.’ The passage expressed James Madison’s view. The object of the Constitution is to preserve public control over the men and measures of government. The press is protected not for its own sake but to enable a free political system to operate. In the end, the concern is not for the reporter or the editor but for the citizen-critic of government.
The Sullivan case demonstrates what is at stake on so many of the occasions when we speak about freedom of the press. It is the freedom to perform a function on behalf of the polity. Nowadays, Justice Powell of our Supreme Court has said: ‘no individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities ... By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment.’
Near v. Minnesota was a case decided by the Supreme Court in 1931. Near was the publisher of a weekly newspaper that made crude attacks on public officials, accusing them of corrupt alliances with gangsters. The paper was also viciously anti-semitic. In 1925 the Minnesota legislature passed a law allowing the courts to close, as a public nuisance, any newspaper found to be persistently malicious, scandalous and defamatory. Local authorities brought an action to enjoin further publication of Near’s paper, and the Minnesota courts did so. That was almost the end of the case. Establishment newspapers were embarrassed by Near and reluctant to argue the principles of press freedom on his behalf. But eventually they did support an appeal to the Supreme Court. By a vote of five to four, the Court found that the Minnesota law violated the First Amendment. Chief Justice Hughes, who wrote the opinion, devoted much of it to a discussion of English legal history: the struggle against licensing of the press, and Blackstone’s conclusion that the liberty of the press meant putting no previous restraints or publication. But then Hughes turned to James Madison’s words about the need for open public discussion to prevent abuse of official power. The importance of the press’s function in that regard had grown, Hughes said: ‘The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied.’ And all of this emphasised ‘the primary need of a vigilant and courageous press’.
Great principles of law are often evoked by unworthy parties, and Near and his newspaper surely seemed to fall into that category. But a few years ago someone I know was working on a book about the Near case. He mentioned this in the hearing of Irving Shapiro, an American industrialist who was the chairman of the DuPont Company, and Mr Shapiro said: ‘I knew Mr Near.’ Irving Shapiro’s father owned a small dry-cleaning shop in Minneapolis. Gangsters demanded protection money from him, and when he would not pay they sprayed the clothes with sulphuric acid. No regular newspaper covered the event. But Near’s weekly did, angrily and accurately. For all of Near’s anti-semitism, for all his excesses, he endeared himself to the Shapiro family – and made a difference in that community.
Forty years after the Near decision its principle that the First Amendment disfavours what we now call prior restraints was applied in a case not of local sensationalism but national security. It was the Pentagon Papers case. The New York Times, and other newspapers later, published excerpts from a secret official history of the Vietnam War. The war was still on, and the Government claimed that continued publication would gravely injure national security, threatening alliances and the lives of our soldiers. The Government went to court and asked for injunctions. The judge chosen to try the case, Murray Gurfein, had been a military intelligence officer during the war – a fact that did not encourage the Times’s lawyers. He began with expressions of concern for the national security. But when he asked the official witnesses to point to particular passages in the secret history – the volumes were piled up before him in the closed courtroom – and tell him what harm publication would do, they were evasive. Judge Gurfein remarked at one point that he could see more sensitive material on the war ‘every day on television’. After hearing the arguments, he rejected the Government’s application for an injunction. He said the Government had shown no threat of vital breaches in security but only the possibility of embarrassment. He sympathised with the difficulties of governing in such circumstances: but, he said, ‘a cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.’
When the case reached the Supreme Court, the Court rejected the Government’s arguments and allowed the newspapers to resume publishing the Pentagon Papers. Two legal doctrines played a part in the decision, and it is important to identify both. First there was the principle of the Near case, that prior restraints are suspect under the First Amendment. Second was the absence of any statute directing the courts to prohibit the publication of such material. Government counsel conceded that there was no Act of Congress defining this material as secret and calling for its suppression – as there is, for example, on nuclear information. The Government was asking the justices to make public law to fit the occasion, and they were reluctant to do that. If new law was needed, the Executive should go to Congress.
The Times counsel in the Pentagon Papers case was the late Professor Bickel, a man of conservative outlook who rejected the notion of absolute freedom, for the press or anyone else. At the end of the case he wrote that the First Amendment gave us no pat formula but rather ordained ‘an unruly contest between the press, whose office is freedom of information and whose ambition is joined to that office, and government, whose need is often the privacy of decision-making’. When government lost control of information, he said, that was ordinarily the end of the matter; courts would resist the role of censor. Society would be better-off if both parties in the contest exercised restraint, but we must be content with ‘an untidy accomodation’. ‘It is the contest,’ he said, ‘that serves the interest of society as a whole.’
American constitutional law seems to strike some who see it from across the Atlantic as a strange creature, full of politics, not law in the old-fashioned sense. Yet British judges and lawyers would find the judgments in those three cases entirely familiar in their reasoning process. It’s true that the Supreme Court can be the subject of political debate, as it is now: but in their work the judges act very much as Common Law judges do, reasoning from case to case, respecting precedent, preserving the sacred quality of the law. The Court is closely divided at times, but I suppose that is not unknown in the courts of last resort of other countries. And almost invariably, over time, the sharpest conflict yields to the development of legal doctrine that commands general assent. Justices of all views are moved by institutional loyalty and discipline. That was so in the Hughes Court, the Warren Court, the Burger Court – and it will be so in the Rehnquist Court. I mentioned that Near v. Minnesota was a five-to-four decision. Just five years later a unanimous Court applied its teachings in holding invalid a special tax on newspapers. One of the dissenters in the Near case, now speaking for the Court, said: ‘Informed public opinion is the most potent of all restraints upon misgovernment.’
In the three American cases one can see a number of themes meaningful for any free political system, republic or monarchy, with or without a written constitution. The first theme is society’s interest in protecting freedom of expression. We value the freedom in part because of its liberating effect on the individual spirit; to forbid the poet or painter to express what she feels is to impose a form of imprisonment. But more and more we are concerned with the social function of free speech and a free press: to assure that, in a political system intended to be responsive to the public will, public opinion is informed. In a word, the purpose is accountability. Government must be accountable for what it does. And there can be no accountability in the dark. The press and the citizen-critic of government need freedom to speak not only as a negative check, to prevent corruption or abuse of power. We believe affirmatively that better policy will emerge when there is a choice among possibilities. Wisdom is more likely to come from open debate.
A testament to that principle has come lately from an unlikely source: the Soviet Union. A writer and editor, Anatolii Ivanovich Strelyanyi, was talking to a meeting of young Communists at Moscow State University, and a transcript was made. He spoke of the need for a truly independent press. ‘An independent press is a press that reports on killed and wounded in Afghanistan,’ he said, ‘gives daily information on radioactivity at Chernobyl, is present at sessions of the Politburo and reports on who said what.’ A voice from the floor said: ‘That can’t be.’ Mr Strelyanyi replied: ‘If we want to eat our own bread, not American bread, then there will be an independent press.’ He went on: ‘If there had been an independent press, then Medvedev, the chief engineer who ten years ago wrote that you shouldn’t build a nuclear reactor near Kiev and described the catastrophe ... But they didn’t let him have his say, they shut him up.’
The Soviet Union, with its blundering economy, is a telling example of the cost of an un-free press and speech. We can look to another troubled society, South Africa, for an example of another theme that I see in those three American cases: that the crucial freedom today is not freedom to express opinion but freedom to argue facts. It is often said that South Africa has a free press. The Government says so, and points to it as evidence that South Africa adheres to Western values. It is true that South African newspapers can criticise apartheid and make negative comments on government policy. They are free, that is, to express critical opinions. But they are not free to publish inconvenient facts.
Even before the current emergency, a web of laws inhibited publication of facts crucial to an understanding of reality in South Africa. One made it a crime to print anything about prisons without first obtaining assurance of the story’s accuracy – a requirement which the courts said amounted to seeking the prior approval of prison authorities. Another law imposed the same requirement for articles about the Police. Military matters were another forbidden zone. I do not need to say that what the Army, the Police and the prisons do is an extremely important aspect of the way the black majority lives in South Africa, and the way it feels. Most whites are entirely unaware of those realities; they have never entered a black township, for example. All of us tend to turn our eyes away from unpleasant truths about our own societies, but the unawareness of South African whites is extreme. And the Government is determined to keep them unaware. That way, it is easier to convince them that unrest in the black community is the work of outside agitators and Communists. It is easier to maintain the maximum of repression with the minimum of guilt. The emergency regulations have had an even more drastic effect in limiting current knowledge of the brutalities of daily life in the black townships. The authorities set out to do in far more severe form what Mr Sullivan and the others wanted to do in the American South: to keep outsiders from knowing about the oppression. But the South African Government has largely succeeded. It has shown that international policy-making can also be affected by a cut-off of information.
When we look at South Africa, we have no trouble seeing that freedom of comment is not enough. But in any society informed policy choices require knowledge of the facts: facts about Soviet casualties in Afghanistan or the origins of the war in Vietnam. When he decided to let publication of the Pentagon Papers go ahead, Judge Gurfein said: ‘In this case there has been no attempt by the Government ... to stifle criticism. Yet in the last analysis it is not merely the opinion of the editorial writer or the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.’ The Pentagon Papers case illustrates a third point. It is that the fear of what may happen if there is open discussion of public issues is often exaggerated. When the Government was trying to stop publication of the Vietnam, history, its witnesses appeared in closed sessions of the court and paraded horrible possibilities before the judge. Years later, one of those witnesses said in a public statement that he was glad the Government had lost the Pentagon Papers case. The things he worried about then did not really matter, he said – the supposed embarrassment with allies and so on. The affirmation of our freedom was more important.
The fourth and final point that I see in these cases is the special danger of courts suppressing information at the behest of governments without the guidance of statute law. It is one thing for courts to build the law from case to case in areas untouched by statute, as Common Law judges always have done; it is quite another for courts to re-shape the law to a design proposed by the executive when the legislature has acted in the field and has not made law to that design. In the Pentagon Papers case, for example, the United States Government asked the Supreme Court to do what Congress had declined to do. Successive Administrations had proposed legislation to declare certain kinds of information secret and have courts enforce the rule by injunction. But Congress had not passed the Bills.
We need have no illusions about the perfection of legislatures. They can legislate in haste and repent at leisure, as Congress did in the Espionage Act and Parliament in the Official Secrets Act. But ordinarily legislative consideration allows for canvassing of opinion in ways not open to courts, and for weighing of policy considerations. When rules are laid down by statute, they have a degree of democratic validation. As Professor Bickel put it, ‘the more fundamental the issue, the nearer it is to principle, the more important it is that it be decided in the first instance by the legislature.’
Moreover, there is an inherent imbalance in the parties when a court considers whether to prohibit speech or publication without guidelines in a statute. On one side there is the Crown or the United States, with all the weight of a government. On the other is a private individual or institution – a newspaper, say. Judges are trained to pay equal regard to parties, whatever their status, and I greatly respect their ability to do so. But when a newspaper asserts what it claims to be a general public interest in certain information, may there not be a degree of scepticism – a sense that there is really a selfish interest in publication? It is sometimes hard to see that such selfish interests are what add up to general freedom. Or consider the matter of national security. When a government contends that publication of this or that will endanger the nation, judges tend to be impressed; certainly American judges are. They are reluctant, quite naturally, to disagree with an official estimate of danger in an area – defence, intelligence and the like – in which judges are not experts. What chance does the other party have of persuading a court that there is no substantial risk, or none that outweighs the damage to freedom, when the risks have not previously been balanced by the legislature? In the United States, Congress has been reluctant to grant new powers to suppress information. That is the reason why Presidents have increasingly asked courts to act in the absence of legislation. But it is the very reason why courts should take care before making new law.
Those are the themes that I see in the American cases on freedom of the press: the societal function of the freedom, the importance of allowing discussion of facts, the tendency to exaggerate the harm disclosure may do and the special danger of judicial lawmaking to limit free expression without legislative guidance. It would seem to me that these are meaningful considerations for any free political system. Let me try now to apply them in the British context.
Consider first the case of the Crossman Diaries. Richard Crossman kept the diaries while a member of the Cabinet, as his colleagues were aware. After his death they were edited, a first volume was prepared for publication and serialisation began in the Sunday Times. The Crown brought a civil proceeding to restrain further publication. It chose not to invoke the Official Secrets Act, although that sweeping statute seemed on the face of it to apply. Why did the lawyers for the Crown make that choice? We can imagine some reasons. The Official Secrets Act had been much criticised. A jury might be reluctant to convict under it, especially when there was no claim that the diaries disclosed defence or foreign-affairs secrets. It might be awkward to put in the dock as criminal defendants Mr Crossman’s literary executors – among them his widow and Mr Michael Foot – and the editor of the Sunday Times. An order restraining publication could be issued with so much less inconvenience: by a judge alone, without a jury, and without the machinery of the criminal law.
The Lord Chief Justice decided not to stop publication because, he said, the disclosures were insufficiently serious. But he held that the courts had power to issue such a restraint, and the significance of the Crossman Diaries case lay in the fashioning of that legal instrument to curb expression on public matters. The Lord Chief Justice followed the legal path suggested by the Attorney-General. He applied in the public sphere the Common Law doctrine that condemns breaches of confidence in commercial and private relationships. His judgment took that large step without really considering the alternatives in public law that were open to the Crown. The judgment gave no weight to the fact that the Official Secrets Act existed and could have been invoked. Nor did it mention that governments had long been on notice of Mr Crossman’s intention to publish and could have brought in a Bill to deal with the problem – if one existed. In my view, those were essential considerations. If Parliament has enacted law whose use the Crown finds awkward, it is not for courts to provide an easier way – least of all when freedom of expression is involved. In a free society repression of speech and press should not be made easy.
Another extreme example of inadequate attention being paid to the public interest, in my view, was the thalidomide case. The interest was great: the need to discuss and correct flaws in the rules of drug-testing that had allowed on the market a drug that caused horrifying birth defects. While tort actions by the affected families lay on the docket for a decade, with no move for trial, Parliament was prevented from discussing the problem by the sub judice rule. When the Sunday Times wrote about the situation, its articles were found by the House of Lords to be in contempt of court because they might put pressure on the defendant in the tort actions, the Distillers Company. And a final article, using company documents and charging serious faults in the promotion of thalidomide after questions had been raised about its effects, was also restrained as a violation of confidence.
The result of the thalidomide case was to keep the press and the public from discussing the facts in a way that might help the victims of thalidomide and prevent another drug tragedy. Or that was the result until the European Court of Human Rights found that the suppression of the Sunday Times articles violated the European Convention’s guarantee of freedom of expression. After that the Government proposed and Parliament enacted a statute bringing the law of contempt into conformity with the European decision. The Government avoided another defeat in the European Court like Byron’s Julia, by a timely surrender. That was the Harman case, in which it was held to be a contempt to give a journalist copies of official documents, obtained in litigation, that had been read out in open court. I find myself unable to understand the logic of that decision. What legitimate legal or social purpose can be served by punishing the disclosure of something already disclosed? The Crown offered no answer when the case was taken to the European Court. It settled the case by paying costs and undertaking to change the law.
Finally, there is Spycatcher. When the House of Lords forbade the publication of material from Peter Wright’s book, even though it is a best-seller in the United States and can be brought freely into Britain, there came to mind a scene from a film of my childhood. It was in Mutiny on the Bounty, starring Charles Laughton as Captain Bligh. Bligh orders a member of the crew to be given a hundred lashes for some offence. After sixty or so, a mate comes to him and says the man is dead. ‘I ordered 100 lashes,’ Laughton says, ‘and it will be 100.’ Pour encourager les autres, I suppose. That must be the logic. But it was obsessive in Captain Bligh, and I think it must be in the law. The serious question raised in the Spycatcher case and others like it, the difficult question, is how a free society should deal with disclosure of intelligence matters. I have read Spycatcher, and there are things in it that I do not think should have been published. Some of the disclosures are on the disappointing side. We are told, for example, that agents with great industry and daring wired the French Embassy in London and thereby discovered that General de Gaulle was opposed to Britain’s entry into the Common Market. But there are details of what is called tradecraft that should not have been disclosed – if true, and if they had not in fact been published earlier, in books to which the Government made no objection.
The work of the security services is necessarily secret. It would be easy to say that nothing should ever be written about them: easy but wrong. So the American experience indicates. For a long time the CIA was out of bounds – never discussed in the press except in reverent generalities. Then, in 1974, a newspaper report (by Seymour Hersh in the New York Times) charged that the CIA had carried out a massive and illegal programme of spying inside the United States, tapping the telephones and opening the mail of thousands of innocent citizens. President Ford appointed a commission under Vice-President Rockefeller to study the charges. It found that the domestic illegalities had indeed occurred, on an even larger scale. Then a Senate committee which studied the Agency reported that there had been attempted assassinations of foreign leaders, among them Fidel Castro. The consequences of those assassination attempts may have been grave; we cannot be certain yet what harm they may have brought back on us. The lesson drawn was that even the highly secret work of intelligence needs accountability. Intelligence agencies were required by law to report to special committees of the two houses of Congress. They have done so faithfully, with one or two damaging exceptions. And there have been no significant leaks of intelligence information from the committees.
It is sometimes argued that discussion of the intelligence services will harm their reputation. As one of the majority judgments in the House of Lords in the Spycatcher case put it, ‘the British public will lose confidence in the Security Services.’ My impression is that the real injuries to public confidence in both our countries have come from faults in the services’ performance – faults that could hardly remain unknown, such as the failed Bay of Pigs invasion or the Philby affair. Disclosure and correction of such folly as the programme of domestic surveillance surely contributed to the political health of the CIA and of the country.
A further point has to be made about the intelligence services, at least in the United States. What they undertake in secret sometimes reflects an important change in national policy, and such changes require public scrutiny. When US intelligence officials direct a secret war on another country, when they mine that country’s harbours, American interests may be profoundly affected – and Congress and the public are entitled to debate the policy. Our recent history reinforces that claim. Policies undertaken in secret have had disastrous results. I need mention only one example: the covert transfer of arms to Iran. That was one of the exceptional occasions on which the legal obligation to report to Congress was violated. If the rules had been obeyed, much damage would have been avoided.
There is a cultural difference between our two countries that has to be faced. Americans are given to noisy, open discussion of public issues. The British prefer decision-making in small, closely-controlled groups. But it is not cultural bias that makes me believe Britain should and will move to a greater degree of public scrutiny, of open accountability: it is a sense that British society has changed, and is changing, in ways that make the old idea of policy discussion as the responsibility of a restricted group ineffectual and unacceptable. Britain is a less homogeneous country than it was. There is a strong interest in giving all sections of the society the feeling that they have a share in its governance. The present prime minister has had extraordinary success in a stance of opposing the politics of deference and tradition. And, as in America, there is television. Seeing what that medium has done to American Presidential politics, I cannot be enthusiastic about it. But it is a fact of life, and by all signs an irresistible one. It draws political leaders into a relationship with the viewing audience – the public at large – rather than with a small governing circle.
There is another difference between the two countries to be recognised. The public right of speech is not a prime value in Britain. Judges often speak of it as a treasured right, but the results of case after case are to the contrary. Freedom to argue the facts of public policy loses out to the claims of confidentiality, foreign policy, legal order and so on. Even the most direct assault on press freedom seems to evoke little outrage. If American police ransacked the offices of a major broadcasting network, seizing vast amounts of tapes and documents, I do not think the responsible official would remain in office long.
The law seems to me to have a curious effect on the press in Britain. It discourages journalism that matters: the difficult work of digging into public issues. Looking at the decided cases, an editor would know that he is likely to meet great resistance and high cost if his paper tries to find out what caused a drug disaster. He will have no trouble if it prints stories under such headlines as ‘Sex Boys for Sale at Queen’s Grocers’. Of course the law is not wholly responsible, but I think it has played a part in the visible degradation of British journalism. Evelyn Waugh is beginning to look like a master of understatement. The popular press has gone, someone said, from gutter to sewer. And too many newspapers cover political life largely as transmission belts for unexamined assertions by politicians. In such circumstances the profession can hardly gain respect. It must be difficult for those who want to work seriously as journalists to persuade sources of information – in government, business, science, wherever – to take them seriously. This is a further consequence of a system which discourages coverage of the important processes in society and encourages the publication of fantasy and innuendo.
The great theatrical portrayal of journalists hardened to sensationalism and lies happens to have been an American play, The Front Page, done superbly at the Old Vic years ago. The American press used to be filled with the vices I have just charged to Fleet Street, including – in the big establishment papers – the habit of cosying up to politicians. Through the post-war years, until the mid-Sixties, the Washington press corps was very easy on those in office. A symbiotic relationship, some have called it. That has mostly ended, for a number of reasons. The assumption on our part that government officials had superior knowledge and wisdom was shattered by Vietnam. Television let the public in on the little world of Washington. And, not least, our law – the law of the Constitution – encouraged a more vigorous exercise of the freedom of the press. That was what the three decisions I mentioned meant to journalism as a profession. They treated the press seriously, as an instrument of freedom and public accountability. It is not too romantic to believe that the press has tried to live up to that role.
This brings me to a last difference in the two societies: the written Constitution that Americans have and the British do not, with all that it means in judicial enforcement of rights. There are deep historical reasons for the difference. ‘We the people’ – the opening words of the Constitution – created the United States with a government of limited powers. The people were sovereign. It followed almost inevitably that their compact would be binding on those who from time to time governed them. In Britain law-making power has never been attributed to the people. Parliament won that power for itself, and it remains the sovereign legislator. But one does not have to be a great iconoclast to know that in practice today the power of Parliament is in good part myth.
The Executive dominates the legislative process. Even with its new committees to supplement the ritual of Question-Time, the House of Commons can perform to only a limited degree the function of accountability. As for protecting individual rights, Parliament has neither the time nor the machinery to perform that role adequately. In an age of complexity, of individual reliance on an intricate system of relationships with government, the role is increasingly important. But it can only be carried out effectively by the courts.
For all those reasons, I think there will be growing support for a Bill of Rights enforceable in the courts of Britain. But it will have to overcome much resistance. As I discovered to my bewilderment long ago, the sort of people who in America welcome judicial protection of fundamental rights are sceptical in Britain. They question the capacity of judges to perform that role. No American could tell you with a straight face that the course of our constitutional law has been untroubled. But for all our differences we are confident that judges, working by the methods of legal reasoning, are best suited to the role of protecting individual rights. Judges have won that confidence by responding to the complexities of modern society – by developing new ways of applying old protections against the growing power and intrusiveness of the state.
In 1927 Justice Brandeis wrote that ‘public discussion is a political duty,’ that ‘the greatest menace to freedom is an inert people.’ But in that period he and Justice Holmes expressed their bold view of freedom of expression in dissent. It was years before the experience of state power in the world made their view the prevailing one in the Supreme Court. In 1971, a justice who cherished traditional values, John Harlan, wrote for the Court: ‘The constitution’s right of free expression is powerful medicine ... It is designed to remove governmental restraints from the arena of public discussion ... in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.’ In this sense, he said, it is ‘not a sign of weakness but of strength’.
If one believes in freedom of expression as Justice Harlan did, if one regards it as the sign of a self-confident society, then the advantage of writing it into a Bill of Rights is evident. The value of that freedom gradually asserts itself in the law. Judges, in the way of their work, come to take weightier account of freedom of speech and of the press. The press is not always a noble beneficiary of its freedom. There are excesses in the United States as here: incursions on fair trial, to name a painful one. But I think the freedom has proved its value in the progressive and confident aspects of our imperfect country. Alexis de Tocqueville visited America a few years before Dickens and, like him, found much to regret in its newspapers. In Democracy in America he quoted an outrageous attack on President Jackson. Then he wrote: ‘I admit that I do not feel toward freedom of the press the complete and instantaneous love which one affords to things by their nature supremely good. I love it more from considering the evils it prevents than on account of the good it does.’
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