Public health and free speech

When should free expression be limited for the public good?

The Advertising Standards Authority (ASA) today expands its remit to cover use of websites.

Until now misleading advertisers could escape sanction if they used their own webpage for their claims and not, say, a billboard poster or a newspaper advert. Already those opposed to the making of misleading claims by alternative health practitioners -- the new Nightingale Collaboration, Le Canard Noir and Ministry of Truth, as well as many others -- are poised to launch complaints to stop internet-based quackery and its promotion of bogus treatments for which there is not a jot of evidence.

This expansion of the ASA's remit, announced last September, will bring welcome consistency to what was a muddled and potentially dangerous situation for consumers. However, the expansion also raises the general question as to what is the correct relationship between free speech and public health.

The successful defence by Simon Singh of the misconceived and illiberal libel claim brought by the now discredited British Chiropractic Association emphasised that it is important that those making claims for the efficacy of certain remedies should be open to criticism. A spate of similar libel claims over the period 2008-10 involving scientists and science writers triggered the popular and influential Keep Libel Out Of Science campaign by Sense About Science (of which I am on the advisory board). There is an overwhelming public interest in scientists and science writers being uninhibited in being able to question and expose shoddy claims. One hopes this is reflected in the impending draft libel reform bill.

Accordingly, the general principle appears to be that those who promote treatments should be regulated in what they can say, while those who criticise promotions of treatments should always be free from any legal restraints. The overall public interest is thereby served by certain "speech acts" being prohibited whilst others are protected.

However, this general principle does have unwelcome possible implications. There are individuals whose attacks on MMR vaccines or antiviral treatments for HIV seem to border on the criminally irresponsible, almost to the point of facilitating manslaughter. Surely there must be some legal remedy to prevent such dangerous "speech-acts" when those heeding the attacks may well die? Are these attacks not the modern equivalent of Oliver Wendell Holmes's old roasted chestnut of falsely shouting fire in a crowded theatre? Shouldn't "anti-vaxers" and "HIV denialists" be banned?

The problem here lies partly in rhetoric. The bare assertion of the general right to free speech to criticise any purported treatments can easily be exploited by the knave and the fool. Perhaps their abuse of free speech is a price worth paying for a liberal society; or perhaps there really should be some sort of a prohibition on their bad "speech acts" which does not affect good "speech acts".

Nonetheless, knaves and fools will no longer be able to make misleading advertising claims on their websites which they cannot in posters and newspaper adverts. This is surely a victory for the public interest over the misuse of advertising space by quacks and others.

But it remains less clear how laws and rules should, if at all, prevent the misuse of free expression in undermining highly-beneficial treatments. In these cases, is free speech more important than public health?

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Why Barack Obama was right to release Chelsea Manning

A Presidential act of mercy is good for Manning, but also for the US.

In early 2010, a young US military intelligence analyst on an army base near Baghdad slipped a Lady Gaga CD into a computer and sang along to the music. In fact, the soldier's apparently upbeat mood hid two facts. 

First, the soldier later known as Chelsea Manning was completely alienated from army culture, and the callous way she believed it treated civilians in Iraq. And second, she was quietly erasing the music on her CDs and replacing it with files holding explosive military data, which she would release to the world via Wikileaks. 

To some, Manning is a free speech hero. To others, she is a traitor. President Barack Obama’s decision to commute her 35-year sentence before leaving office has been blasted as “outrageous” by leading Republican Paul Ryan. Other Republican critics argue Obama is rewarding an act that endangered the lives of soldiers and intelligence operatives while giving ammunition to Russia. 

They have a point. Liberals banging the drum against Russia’s leak offensive during the US election cannot simultaneously argue leaks are inherently good. 

But even if you think Manning was deeply misguided in her use of Lady Gaga CDs, there are strong reasons why we should celebrate her release. 

1. She was not judged on the public interest

Manning was motivated by what she believed to be human rights abuses in Iraq, but her public interest defence has never been tested. 

The leaks were undoubtedly of public interest. As Manning said in the podcast she recorded with Amnesty International: “When we made mistakes, planning operations, innocent people died.” 

Thanks to Manning’s leak, we also know about the Vatican hiding sex abuse scandals in Ireland, plus the UK promising to protect US interests during the Chilcot Inquiry. 

In countries such as Germany, Canada and Denmark, whistle blowers in sensitive areas can use a public interest defence. In the US, however, such a defence does not exist – meaning it is impossible for Manning to legally argue her actions were in the public good. 

2. She was deemed worse than rapists and murderers

Her sentence was out of proportion to her crime. Compare her 35-year sentence to that received by William Millay, a young police officer, also in 2013. Caught in the act of trying to sell classified documents to someone he believed was a Russian intelligence officer, he was given 16 years

According to Amnesty International: “Manning’s sentence was much longer than other members of the military convicted of charges such as murder, rape and war crimes, as well as any others who were convicted of leaking classified materials to the public.”

3. Her time in jail was particularly miserable 

Manning’s conditions in jail do nothing to dispel the idea she has been treated extraordinarily harshly. When initially placed in solitary confinement, she needed permission to do anything in her cell, even walking around to exercise. 

When she requested treatment for her gender dysphoria, the military prison’s initial response was a blanket refusal – despite the fact many civilian prisons accept the idea that trans inmates are entitled to hormones. Manning has attempted suicide several times. She finally received permission to receive gender transition surgery in 2016 after a hunger strike

4. Julian Assange can stop acting like a martyr

Internationally, Manning’s continued incarceration was likely to do more harm than good. She has said she is sorry “for hurting the US”. Her worldwide following has turned her into an icon of US hypocrisy on free speech.

Then there's the fact Wikileaks said its founder Julian Assange would agree to be extradited to the US if Manning was released. Now that Manning is months away from freedom, his excuses for staying in the Equadorian London Embassy to avoid Swedish rape allegations are somewhat feebler.  

As for the President - under whose watch Manning was prosecuted - he may be leaving his office with his legacy in peril, but with one stroke of his pen, he has changed a life. Manning, now 29, could have expected to leave prison in her late 50s. Instead, she'll be free before her 30th birthday. And perhaps the Equadorian ambassador will finally get his room back. 

 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.