The Guardian Gets To Speak, But Britain Deserves A Free Press

Here's something we can all agree on: after three hundred years of stalling, Britain deserves a better bill of rights. Twitter, functioning as a press cloud, found a way around a MP's pre-publication injunction against the Guardian newspaper from printing a story about a question that MP had submitted for consideration. It involved a powerful oil company, Trafigura, a very powerful and protective law firm and already public allegations of illegal dumping.

Here's the first sentence that the Guardian, for about 24 hours, was not allowed to print:

Documents have emerged which detail for the first time the potentially lethal nature of toxic waste dumped by British-based oil traders in one of west Africa's poorest countries.

Here's the first sentence of what their lawyers allowed them to print instead:

The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

In 1688, it was made clear to the citizens of the quasi-representative monarchy that what Americans, about 100 years later, would call "freedom of speech" was reserved for members of parliament. MPs could speak without fear of being molested by a defamation claim -- and defamation, in the UK, is something that has to be proven not to have occurred in order for a claim to be dismissed.  This absolute privilege has trumped the qualified privilege that Britain's journalists have enjoted since 1694, when Parliament made censorship illegal by ending the practice of parliamentary licensing.

The distinction: parliament's free speech privilege is enshrined in the 1689 Bill of Rights -- a document that protected people (or their representatives) from the power of the sovereign, whereas the press's guarantee from "security" -- that is, pre-publication withholding -- was merely a parliamentary choice, because it was parliament, not kings or queens, who generally intervened in press matters before.

In practice, when compared to, well, almost every other country in the history of the world, Britain's press has flourished. But it has done so without the type of prior right that gives the press in the U.S. its moral force. While the press cannot print anything it wants in either the U.S. or Britain, it is much easier in Britain for an entity to obtain a pre-publication injunction, or for some to win a libel lawsuit, or for parliament to bottle up debate, or for government to prevent journalists from publishing secrets.  It is much harder to obtain information from the government.  Still, it should be remarked that, believe or not, the Supreme Court of the United States did not formally agree that the government could not prevent the press from revealing "scandalous and defamatory" matter until 1933, in Near v. Minnesota.  

It's not so much that an expressed free press right would have resolved this dispute the right way.We're still debating the limits of the bill of rights in this country.  And in the U.K., the right to report on what someone says in parliament -- or on the questions submitted to be answered by a minister of government -- is already established in statute. But the existence of a constitutional right would shift the burden away from the interests with relatively less power than the state, the lawyers and the company.