Free speech in an age of oligarchs

censor

The Observer 3 December 2016

Anyone feeling morally superior to Americans should reflect on how Donald Trump feels about us. “In England, they have a system where you can actually sue if someone says something wrong,” he purred . “Our press is allowed to say whatever they want.”

You can understand his envy. Despite reform, an English publisher still has to prove his or her innocence. More enticingly for the rich, money tilts the scales of justice. Unless you have a straightforward case, few lawyers will offer a “no win, no fee” deal. A wealthy media organisation can threaten you with a costs bill of £1m or more if you lose. Equally, plutocrats can threaten increasingly impoverished newspapers with costs they cannot afford, if they don’t back down and back off either.

 
Businessmen make dangerous politicians because they spend their careers expecting deference on pain of dismissal. Most people would restrict the freedom of others to criticise them if they had the power, even if the criticism were true – especially if it were true, I should add. But while we must grow thick skins, the holders of corporate power can act with megalomaniacal petulance.

Trump’s everyday behaviour shows corporate obsequiousness has bred in him a violent vanity. He never forgets or forgives a slight. Conservative pundits tell us to calm down and remember the left was as “hysterical” when Ronald Reagan won in 1980 as it is now about Trump. They fail to see what the left of 1980 also failed to notice. Reagan was an optimistic leader, who wanted to end the cold war. Trump is dark and vindictive and it is impossible to be too pessimistic about his character.

From All the President’s Men to Spotlight, we are conditioned to think of America as a land of brave journalism and exceptional protections for press freedom. But if 2016 has taught us anything it is that “American exceptionalism” is dead. Trump isn’t exceptional. He is just the latest in a growing gang of elected strongmen who have gone on to attack constitutional restraints on their power in Turkey, Russia, Hungary, Poland and the Philippines.
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The US constitution is meant to be exceptional because its first amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” It’s one of the Enlightenment’s best-written restraints on power and, God knows, we could use it in the UK. But for most of America’s history the courts operated with a repressive version of the libel law they inherited from the British empire. It was only in 1964 that the supreme court added the proviso that public figures have no right to sue unless the writer had deliberately lied about them, a bar too high for nearly everyone in public life to jump. Martin Luther King forced the judges to liberalise. His tactic of peaceful civil disobedience can work only if there is a free press to report the abuses the protesters are trying to remedy.

When liberal newspapers reported on police violence against black demonstrators in the old south, however, all-white juries in Alabama hammered them with punitive damages. Herbert Wechsler, the New York Times lawyer, who had earned the right to be respected by trying Nazi war criminals at Nuremberg, constructed a brilliant argument. He showed the framers of the constitution had never intended giving police chiefs and other public figures the right to sue their critics. For all Wechsler’s learning, it is beyond doubt that, when the supreme court agreed, it was issuing a political verdict in the broadest sense to protect the civil rights movement.

American lawyers believe Trump cannot overturn it. He will appoint one or two supreme court judges, they say, but existing conservatives in the nine-judge court have shown no interest in challenging free speech. They forget that the conservative movement is now Trump’s movement and may be ready to respond to his priorities. After all, conservative judges may ask, why should public figures who have clearly been libelled be denied redress? Many rich men are already asking that question. They are taking advantage of a new balance of power where news organisations are everywhere getting poorer while the rich are everywhere getting richer. The Idaho plutocrat Frank L VanderSloot, for instance, may have lost his case against the leftwing magazine Mother Jones, but he had the satisfaction of tying up its editors in legal action for years. Meanwhile, the Silicon Valley billionaire Peter Thiel circumvented the first amendment and closed the Gawker site he loathed for outing him as gay.
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The American right can look to the deformed democracies of Hungary, Poland, Turkey, the Philippines and Russia for encouragement. Most strikingly, they can also look to Britain, where plutocratic censorship has the potential to go further than anywhere else in the west.

Instead of cutting the costs of libel and privacy actions and opening the courts to all, Lord Justice Leveson responded to the hacking scandal by beginning a process where rich men can fund “independent” press regulators. The Formula One tycoon Max Mosley obliged. (The British Peter Thiel hated the tabloids for invading his privacy by reporting on his meetings with prostitutes.) No free newspaper can submit to a state-backed regulator and none has agreed to co-operate. Labour and Liberal Democrat peers are as determined as Trump to bring journalists to heel, however, and are close to persuading the government to punish recalcitrant newspapers by making them pay the costs of libel cases, even if they win them.

“Progressive” politicians and the allegedly liberal celebs in Hacked Off profess to be Trump’s opponents. But they, too, find self-interested reasons to censor. The liberal-left hate the Mail and the Murdoch press for reasons I understand. They don’t care that the Guardian and Private Eye, which exposed the hacking scandal, along with every other decent news organisation, won’t submit to Mosley’s regulation either. Their desire to punish their enemies overrides basic liberal principles. More importantly, they lack the political imagination to realise how their own betrayals of liberalism will be exploited.

Think of it. The state can license a plutocrat to establish a regulator. Publishers who refuse to co-operate will face costs they can’t afford to meet, even if what they write about a Russian oligarch, a New York property tycoon or a Turkish secret policeman is true. Wolfish strongmen all over the world will watch Britain’s experiment with punishing journalists for reporting accurately with fascination. As Trump has shown, we are their inspiration and their justification.

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