The rapid decline of free speech in England accelerated further this month with a ruling of the British high court banning The Sun newspaper from naming celebrities involved in a sordid sex story despite the fact that all three names are widely known and discussed on the Internet and non-British newspapers. Indeed, papers like the Toronto Star have running virtually mocking accounts of Elton John, his Toronto-born husband David Furnish, and British businessman Daniel Laurence. Elton John is obviously the quintessential public figure who has participated in a wide range of stories and programs on his family life with Furnish and their children. It is a chilling example of England’s rollback on basic free speech and free press protections.
The newspapers previously prevailed in the Court of Appeals which ruled that an earlier injunction against the press should be lifted. However, four Supreme Court justices — Supreme Court President Lord Neuberger, 68, Deputy President Lady Hale, 71, Lord Mance, 72, and Lord Reed, 59 — ruled against the press and imposed the facially ridiculous order that newspapers cannot utter the names that everyone is discussing and other newspapers are printing.
The judges said there was no public interest in knowing of stars’ “private sexual encounters”, even if they included adultery and threesomes. That runs against the rulings of courts in countries like the United States. In the United States, all three figures would be subject to the standard of actual malice under New York Times v. Sullivan. Public officials are placed under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. This constitutional-based standard is designed to protect free speech, particularly when directed against powerful politicians. Of course, these people are not public figures in the United States and some do not hold public offices. However, the same standard applies to public figures.
The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:
[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
In the Elton John case, only Lord Toulson, 69, backed free speech and the free press, saying the court risked losing “public respect by giving the appearance of being out of touch with reality”. He added wisely “The court must live in the world as it is and not as it would like to be.”
England has seen the rise of calls for speech prosecutions, including this month. We have previously discussed the alarming rollback on free speech rights in the West, particularly in England ( here and here and here and here and here and here and here and here and here and here and here).
While many have cited the advanced ages of the court, I believe that their ages are irrelevant. The problem is far more profound. England has always had an uncertain relationship with free speech and free press protections. The Crown laws and other limitations are part of a tradition of benign governmental control over speech and media. It has never adopted the bright line approach that characterizes the United States precedent. That approach is now proving the undoing of free speech in England as the government and courts exercise more and more control over speech. At the same time, various groups are demanding their own sanctions against critics as speech controls become insatiable. As someone with a long and deep love for England, it has been painful to watch the country descend into depths of speech controls and prior restraint. This case is only the latest example of how protections for free speech and the free press are becoming increasingly discretionary in England.