America can teach us all a lesson on freedom of speech
Have no doubt about. The businessman and media baron, Denis O’Brien, apparently feels strongly that he is being ‘got at’, and singled out. He does not see why deals in which he has participated should be aired in public, whether in Dáil Eireann, or in the media.
And yet, if there is one lesson to be learned from the bubble years, it is that the activities of the powerful in the world of business must be the subject of careful public analysis and informed debate.
In the Noughties, figures in the Irish banking and property world were able to rely on the deadly weapons on offer, courtesy of Irish laws of defamation which all too often serve to inhibit discussion.
The corpus of law on libel and slander was put together, in large part, in the early part of the 20th century in common law jurisdictions. Over the years, it has resulted in many a tidy windfall for client and legal adviser alike, while turning grey the hairs of countless publishers and editors.
In boom-time Ireland, the defamation gravy train served to ensure that the public, by and large, remained in ignorance of looming shifts in the financial tectonic plates. Matters of vital public interest remained a matter of rumour and conjecture. The ultimate result was that many thousands of shareholders were effectively wiped out while the taxpayer was stiffed for record amounts.
Leaving such matters for discussion in the plush hangouts of the well connected means that large numbers of people end up being disadvantaged, primarily those not socially connected to stockbrokers, bankers and their like. Members of juries, ordinary Irish people, have shown an extraordinary willingness to hand out astronomic awards to clients screaming about the damage to their reputations. Lawyers in this country — most of whom favour liberal causes and are firm advocates, in general, of freedom of expression — profit all the same from a system which hits out both at freedom of expression, equity, and economic efficiency.
Of course, there must be some limit placed on the expression of opinion, or we could indeed end up driving wealth creators and business activity overseas.
All that said, it is worth examining how they handle such matters in the United States, the land of free enterprise.
There, the First Amendment of the US Constitution guarantees free speech and since World War Two, it has been interpreted liberally by the Supreme Court in a number of key decisions, one of them delivered, in recent days.
In 1776, as the Revolution gathered steam, the Colonial legislature of Virginia passed a Declaration of Rights which stated that “the freedom of the press is one of the greatest bulwarks of liberty.” Similar pledges were made by representatives in eight of the fourteen States of the new United States.
Fast forward to the early 1960s. The campaign for civil rights for blacks in the South was underway. The New York Times produced an ad feature sponsored by Hollywood stars and religious figures in which accusations were leveled at public officials in the State of Alabama, after which one of whom, a Mr Sullivan, sued for libel. A jury in the State capital, Montgomery, awarded him $500,000 — huge money.
The award was appealed to the Supreme Court, then a liberal court under Chief Justice, Earl Warren.
Some academics consider the decision in ‘New York Times v Sullivan’ (1964) to be its most important decision since 1945.
The key judgement was that of Mr Justice William Brennan, a liberal stalwart. Citing James Madison, a co-author of the original Constitution, he discussed the vital role of the press, arguing that “even caustic debate is integral to democracy”
He went on to suggest that ‘even erroneous speech’ is an important part of discussion in a free society.
Debate on public issues should be “uninhibited, robust and wide open” - and indeed, caustic and sometimes unpleasant.
Elsewhere, the Supreme Court has ruled that ‘commercial speech’ (in the form of ads or brochures, etc ) does not enjoy the same First Amendment protections as political speech. For many years, the law afforded greater protection to private citizens than to public bodies when it came to public criticism.
However, in the ‘Gertz’ case, in 1974, the Court ruled that a private individual had to prove actual malice (or recklessness) in order to secure an award of punitive, as opposed to ‘ordinary’, damages. In the 1990s, the evangelist, Jerry Falwell sued ‘Hustler’ magazine after it produced a fake ad suggesting that Falwell had his first sexual experience with his mother in an outhouse. The Court concluded, reversing a lower court decision, that since Falwell was a public figure, he was not entitled to sue the magazine for ‘distress’. In its view, “the free flow of ideas and opinion was of paramount importance.”
In another key decision involving the New York Times, the Court in 1971 struck down, by six votes to three, an attempt by the Nixon Administration to ban the publication of the ‘Pentagon Papers’, which had been leaked by Daniel Ellsberg, a public official and the Edward Snowden, or Bradley Manning of his day.
The Court concluded the Government had not “met the heavy burden of proof required for prior restraint.” and in a case involving the Miami Herald, in 1974, the Court held a newspaper may not be forced to publish something against their will.
The Supreme Court has swung to the Right since the 1970s, but it retains strong libertarian instincts when it comes to interpreting the First Amendment. On June 1, the Court reversed a lower court conviction of a gentleman called Mr Elonis who was convicted for sending threatening posts on Facebook to his ex-wife. As he put it, charmingly: “There is one way to love you, a thousand ways to kill you.”
The Court held that the legal standard used to convict Elonis was too low. This decision has attracted much criticism, being seen as a green light for the tide of filth on social media. Less controversially, the Court has also ruled against the upscale fashion retailer, Abercrombie & Fitch, for refusing to allow a Muslim employee to wear a headscarf to work. The judges concluded this amounted to unlawful discrimination on the basis the store was refusing to accommodate her religious beliefs.
The current Chief Justice, John Roberts, is a big supporter of the First Amendment, though his Court has used it to remove previous limits on spending by the powerful on elections.
One thing is clear. Freedom of expression is alive and well in the US, even if the freedoms on offer, at times, appear to extend in ways that many Europeans would consider unsettling. American democracy has plenty of flaws, not least in the influence accorded to large corporations and the wealthy, but at least there is a willingness within the judicial establishment to allow the citizens to speak out on matters of public concern.
American democracy has plenty of flaws but at least its citizens are allowed to speak out on issues of serious public concern, writes Kyran Fitzgerald
Matters of vital public interest remained a matter of rumour and conjecture
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