Does Europe Understand the First Amendment Better Than We Do?

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Lord Anthony Lester, a British member of parliament who helped make free speech law relevant overseas, explains why America is losing at its own game.

britain-expression.jpgStudents and staff in Cambridge, England, take part in a silent protest against the new chancellor on March 21, 2012. (Reuters)

Anthony Lester is a member of the House of Lords in the Parliament of the United Kingdom. His work in human rights has transformed Europe's legal landscape, and perhaps more than anyone else he has made the First Amendment globally relevant.

Trained at Harvard Law School, Lester has argued a number of landmark free expression cases before English and European courts, often using American legal principles to great effect.

He talked with me Saturday about a variety of topics, including the American legal system and its global influence, the problem of hate speech, and the balance between free expression and national security.


What's the greatest threat today to freedom of expression?

There's no simple answer to that question, but the great threats to free speech are similar everywhere in the world, including in the land of the free, the home of the brave. One is the threat of censorship and self-censorship, another the threat from those in power who seek to retain power by suppressing criticism, and yet another the threat that comes from popular prejudice. Those threats are widespread, if not universal. Their context differs, of course, from country to country and society to society, and in the United States, their context differs from state to state.

What was your reaction to the U.S. passing the SPEECH Act, the federal law that made foreign libel judgments unenforceable in U.S. courts unless those judgments complied with the First Amendment?

My question to President Obama would be, "What are you going to do after we make our libel law more liberal than yours?"

It made me laugh, and it was a bit of chutzpah. We once did something similar in Britain. Singapore and Malaysia have used their libel laws to punish dissent. Basically, they bankrupt dissidents by bringing libel suits against them, getting major money damages to put them out of business. Years ago, when we harmonized our tort law in Britain, we prevented Singapore and Malaysia from bringing their coercive libel suits to Britain unless they satisfied British principles.

What the U.S. did is essentially the same thing, and I understand why it was done. It was a populist measure and probably a legitimate one, because at the time British libel law was unnecessarily chilling of speech.

But my question to President Obama would be, "What are you going to do after we make our libel law, in many respects, more liberal than yours?" I wonder if it will be repealed. It's not very good for reciprocity or mutual respect between two great common-law systems.

One thing that causes a certain amount of anxiety around the world is the long arm of U.S. jurisdiction. You have a way of coercing other countries, including Britain, into passing laws that you want, that serve U.S. interests. At the same time, you're telling one of your strongest allies that you won't recognize its judgments. It's an example of American exceptionalism.

Is there other evidence of American exceptionalism in the U.S. legal system?

I studied law at Harvard Law School, and when I returned to Britain in 1962 to start my career, I truly believed the U.S. had the best legal system in the world. I remember one time when Dean Erwin Griswold called us all together, all of the foreign students, and he said, "You've seen the benefits of the American constitution, federalism, and the Bill of Rights. Go back to your countries and spread the word."

I thought it was arrogant. But in 1962 he was right. America had everything to teach the rest of the world. Fifty years later, the situation has changed. The United States has little to teach real democracies other than its own.

The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others.

Consider, for example, the International Criminal Court, a huge development in the history of mankind. It was animated by the United States, and yet the United States has refused to accept its jurisdiction. Or consider the 1986 case Bowers v. Hardwick, in which the U.S. Supreme Court ruled that there was no constitutional protection for acts of sodomy. At the time, there were European decisions on the books addressing that very issue, after it was raised in Britain. The justices didn't even consider those decisions.

They revisited the sodomy issue in 2003, in the case Lawrence v. Texas. When the American Bar Association came to London, I was on a panel with Justice Kennedy, and I said, "What a shame that the Supreme Court can't open its windows to the wider world." Justice Kennedy was quite rude to me, saying that I was just a zealot. Later, though, when he rightly and nobly reversed Bowers v. Hardwick, he did so with some reference to transnational law. One of the other members of the Supreme Court wrote to me and said I could take the Lawrence decision as a more polite response to my comment directed at Justice Kennedy.

What's the global influence today of the U.S. Constitution and the First Amendment?

When I began to practice law in the 1960s, the global influence of the U.S. Supreme Court was significant. There was no question then that the American system and process were highly influential. When the European Union was founded, American ideas helped to shape the common market, and when I first visited the European Court of Justice in Luxembourg, I was pleased to see American law reports on the shelves of the presiding judge. At that time, American prestige was enormously high, and I would draw upon U.S. case law when I argued cases in Britain and when I argued cases in the two European courts.

What began to happen, though, was a decline in influence because of the hyper-politicization of the U.S. Supreme Court and the insularity of its judgments. If you take, for example, the reach of the Equal Protection Clause, in the beginning we learned from your case law and civil-rights legislation. But then came extraordinary cases saying you couldn't use the Equal Protection Clause in discrimination cases unless there was intentional discrimination. And from there, the U.S. influence in shaping discrimination law around the world, well, it ended.

That sort of decline is true to a significant degree of the First Amendment. I've used the First Amendment to great effect in British libel cases and in the European Court of Human Rights. However, when the U.S. Supreme Court handed down a few extraordinary decisions, like Citizens United and Humanitarian Law Project -- and to a lesser extent the complicated case of Snyder v. Phelps -- it became more difficult credibly to cite American case law on freedom of expression.

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Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism. He blogs about free expression for the Harvard Law & Policy Review and he has written on legal issues for Slate, The Nation, Wired, the Columbia Journalism Review, and PBS.

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