Friday 23 April 2010

Free speech: yes, it really is that simple

Libel, free speech and the election

One of the Institute of Ideas’ 21 Pledges for Progress is to ‘repeal the UK’s libel laws, in the interests of free speech, no ifs, no buts’. Like most of the pledges, this one is not endorsed by any of the main parties, but there is at least an emerging consensus that libel law is in need of reform. This was the focus of a special ‘free speech hustings’ organised by Libel Reform at London’s Free Word Centre on Wednesday evening.

Michael Wills for Labour, Dominic Grieve for the Conservatives, and Evan Harris for the Lib Dems set out their views and answered questions from the audience. All are in favour of reforming the law to some extent, but the debate suffered rather from an unquestioned assumption that libel laws of some form are necessary. Total repeal was simply not on the agenda (despite my own best efforts to get in to speak).

Michael Wills came closest to making an explicit case for libel laws, when he insisted that the state has a responsibility to protect vulnerable individuals and minorities from powerful interests. He was challenged from the floor by liberal-left blogger Sunny Hundal, who accused him of being patronising to minorities, and pointed out that censorious laws are more often used against them than on their behalf. Indeed, much of the evening’s consensus for libel reform came from a recognition that it is powerful individuals and organisations who typically use libel law to silence their critics. Wills’ unrepentant response, that censorship is necessary as a check on the ‘tyranny of the majority’ was hardly convincing, unless that majority is taken to mean the public, tyrannising the rich and powerful, which doesn’t seem so bad.

The fact is that libel laws, in common with other forms of censorship, are about the exercise of elite power, not the constraint of it. Libel law brings the coercive force of the state into publishing, into journalism, into public debate. And while sometimes, after much time and expense, that force just about, and messily, comes down on the side of those exercising free speech, like Simon Singh, far more often it favours powerful interests at the expense of free speech – the notorious LM trial comes to mind.

Tellingly, though, only the most naïve observers believe libel cases establish the truth, especially in England, where the burden of proof, uniquely, rests with the defendant. When a corporation or celebrity succeeds in silencing criticism using a libel suit, most of us understand this is perfectly compatible with the criticisms being completely true. We also understand that we’d better not say so too publicly.

In reality, whether you’re a multinational company or an oppressed minority, the only way to rebut a libel genuinely and convincingly is not through censorship but rather more free speech. Winning a libel case means people are not allowed to say certain things about you. If you want to demonstrate once and for all that those things are untrue, you have to do so through open debate. Over time, free speech exposes untruths, undermines bad arguments, and exposes libellers and slanderers so they really do lose credibility with the public.

In advocating reform of the libel laws rather than their repeal, all the speakers at the free speech hustings missed an opportunity to stand up for free speech. At best, they are vainly seeking to ‘democratise’ censorship, so that libel laws are not so transparently stacked in favour of powerful interests. More substantial changes to the law, along the lines proposed by Libel Reform and others, would be better than nothing, but a general election ought to be about more than fiddling at the edges. If we are to transform our political culture rather than simply changing the guard, we need to think big. And on this issue the big idea is also a simple one: repeal the UK’s libel laws, in the interests of free speech, no ifs, no buts.

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