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.”
The ruling
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.
Mr. Schulte- “Thank you for outing Elton John.” !!!!? WTF.
This comment says it all, or at least a lot. Elton John has been “out” for something like thirty, forty years.
I know this forum is no longer a place for vibrant debate and intellectual skirmishing, but still…there should be at least be some nominal bit of pretense to avoiding the vapid and desultory remarks that are intended to do nothing more than rack up frequency of participation points.
snickers – the outing of Elton John had to do with his involvement in the lawsuit, not that he was gay. In the UK the papers are prevented from printing his name or the other defendants. You can untwist you panties now.
I think all of us need to focus on the most vital and pressing issue of our times, instead of these trivial news stories. I speak, of course, of transgender bathrooms. So let’s us cease avoiding this issue and seeking distractions from it. Let us devote all of our free time to it. I’m confident that if we all do this, we will finally develop bathrooms that can be used by all, regardless of a person’s gender or genders, or various combinations and permutations thereof, whether or not involving body transformations, adjustments, or modifications of any kind, thereof.
DAN —
THINK: the owner here is a member of the 1%. How many 1%ers are progressive? Not many. The right-wing commenters are self-righteous, and they are usually the first ones to give us the benefits? of their opinion. A
former LEO provides his special take on events each weekend. How often do you hear of a progressive Badge Man?
They opine, we read — or don’t.
A very poor article. For one thing, this isn’t a “rollback” or a “rapid decline”. British law has always been this way. They don’t have a written constitution, and do not have the same precedential history as the US. The ruling is technically correct, according to British law. There is no public interest in this story worthy of mention. It is merely the lowest form of tabloid voyeurism. Yes, foreign internet access has revealed the information. But are you suggesting that judges ignore the laws in place, or enact an extreme form of judicial activism? The laws probably do need to be changed, but that is a job for the UK legislature, not a court.
I’m concerned because this site used to be a useful resource, and now seems to have descended into knee-jerk populism. Notice how most of the comments are right-wing and homophobic. Not good. I have noticed that all the old commentators have disappeared.
Elton is an odd duck kind of name.
Britain or England as it was called is not a free country. They do not have a Constitution or Bill of Rights. They worship a Queen. They wish to protect bent guys like Elton John and the upper class.
Sir Elton gets LGBT protection while pedophile priests private sexual encounters go to court?
Gary Triestman: It’s nearly impossible to get a gag order or even to seal a file or portion thereof in a California family court. The standard for good cause to do so way up there. Paternity cases are not available to public inspection without an order, however.
Regarding Sir Elton, I thought all British Knights were protected against media investigation of their sexual promiscuity? Live and learn.
This occurs daily here in America in a microcosm in thousands of court cases, usually family court cases.
The courts issue gag orders on non-privileged information for the convenience of the court, usually to protect the court’s own injustices.
The gag orders are effectively unappealable, because appeals can take months to years to address such unconstitutional orders.
So although such activity is presumptively illegal here in America, it is treated effectively as a scofflaw by the very courts that are meant to protect them.
Thank you for outing Elton John. I read an article on this in a British paper and they were prevented from naming names. I had no idea who they were talking about. All I know is that 3 people were involved, there was lubricant involved and they are famous.