Does Europe Understand the First Amendment Better Than We Do?

By Jonathan Peters

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.

You've been working for years on the general problem of hate speech. You don't argue often for exceptions to free expression. Why do you make an exception for race hate speech? What about religious hate speech? And what about attacks based on sexual orientation?

In our system, this is much influenced by our legislation and to some extent by case law. And in law as elsewhere in life, context is everything. You can't simply equate race hate speech and religious hate speech. In the case of race hate speech, you're attacking someone not for what he thinks or does but for the fact that the person was born, for the person's common humanity. Religion not associated with race, in contrast, is a belief system. It's easier, then, to accept limits on speech that stirs up hatred against a racial group.

Then we have the problem of homophobic hate speech. Do you classify it more like racial or religious hate speech? Although I have argued it is more like race hate speech, since you are attacking gay people not for what they did or believed but for how they were born, when our legislature took up the issue it decided there must be more latitude to engage in homophobic hate speech. As a result, it's treated more like religious hate speech. The illustration of those kinds of hate speech shows the importance of context.

Right now, in the European Court of Human Rights, there is a great debate going on about whether the Court has gone too far in allowing prohibitions on hate speech. So we're having the same type of debates you would have had in at least two American cases: Skokie, which protected the right of neo-Nazis to assemble in a Jewish community, and Beauharnais, which upheld an Illinois law making it illegal to engage in speech portraying the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion."

Shifting gears, when an American company, say Google, chooses to do business in China, to what extent does the company bear the responsibility for helping to realize--in China--the American principles of free expression?

If you are going to work in a regime that doesn't respect free speech, and you are meant to be in the business of free speech, then you're in an extremely difficult position. And that type of problem applies not only to the electronic media but also to the print media. To the extent that broadcasters, print outlets or the electronic media agree to censor their own content, it's deeply regrettable. It shouldn't happen. But it's not a problem exclusive to the Internet.

Changes in technology have blurred lines and caused many people to rethink what it means to do journalism. One of the groups at the center of that debate has been WikiLeaks. Do you think WikiLeaks does journalism?

I think WikiLeaks has behaved in a way that's irresponsible. Whether you call it journalism or not, it's not responsible. That raises, of course, a related question: To what extent should there be a defense of responsible publication, in the context of Internet publishing or otherwise? If a publication disclosed the identity of intelligence officers, whose lives might be destroyed or ended as a result of publication, then that is grounds for restraint, even under U.S. doctrines. That's why you have to strike a balance, the very thing Hugo Black most disliked. But you have to strike one, nonetheless, between free speech and national security.

There are reasons in the U.S. to be worried about that balance. Let me give you a few examples. First, in the Humanitarian Law Project case, aid workers gave advice to the Kurds about peacefully resolving conflicts and how to vindicate their interests at the United Nations. They did not in any way support terrorism, incite it or facilitate it. And yet the U.S. Supreme Court interpreted the Patriot Act to permit the restriction and punishment of those efforts, notwithstanding the First Amendment. So there you have an excessive weight given to national security interests.

Second, right now the Justice and Security Bill is winding its way through Parliament, and the U.S. government has applied enormous pressure on the British government to pass it. The goal seems to be to say that whenever a person possesses intelligence information, it must remain secret without any regard to free expression or the public interest. The bill would operate as the rough equivalent to the U.S. state secrets privilege. In other words, the British government is considering, in an attempt to please the U.S. government, the creation of legal principles fundamentally at odds with British values. One of them is the idea that we would deprive people of evidence and an open trial in cases against the government involving, say, claims of rendition or torture. We would show such evidence only to special advocates, and the trial would take place in secret.

It's a dangerous time to be a journalist in some parts of the world. In the last few weeks, I've read that two Iraqi journalists were killed in Syria; that Mexico reported 67 journalist murders since 2006; and that an Ethiopian court sentenced six journalists to jail on trumped-up terrorism charges. Must a journalist in those countries be willing, basically as a job qualification, to lay down his life to do his job?

Brave journalists know the risks, and they are magnificent in being willing to take the risks. It's their choice, and it's a terrible choice. Our freedoms depend upon it. Consider, too, the use of blasphemy laws in Pakistan. People are being killed quite often there because they want to get rid of Pakistan's blasphemy law. It's not only journalists. It's all people who say they are in favor of getting rid of that law. It's absolutely appalling, and that's why it's wonderful that so many NGOs serve the vital cause of protecting journalists. As with the armed forces, it's in the nature of the profession of journalism that some will have to wear the badge of courage.

Are some countries hopeless with regard to free expression? How do you get places like Mexico or Syria to care about free expression?

Well, it's like saying, "How do you get judges to be independent?" It took Britain hundreds of years to do that, hundreds of years to get democratic government. Your forefathers fought a revolution to create your system, as well, and these are political struggles that must go on. Syria will not respect free speech until it has elected a genuinely democratic government that respects the rule of law and basic democratic principles. That idea applies everywhere, because everywhere there are threats to overturn those basic principles, even in my country and yours. How you spread democratic ideas, at least effectively, that's a difficult question and one whose answer calls for the long view.

This article available online at:

http://www.theatlantic.com/national/archive/2012/07/does-europe-understand-the-first-amendment-better-than-we-do/260244/