At first glance, Nick Clegg's announcement that he is to reform Britain's "chilling" laws against defamation seems like news to greet with a hearty cheer. Surely we would all agree with the Independent's verdict on Saturday:
Britain is the global champion when it comes to libel litigation. That is not a title to be proud of. Our exalted position is a consequence of some extraordinarily skewed libel laws. Anyone can be sued in a British court for anything published in any country, provided the defendant can show they have a "reputation" in the UK to be damaged. This has helped to turn London into a hub of libel tourism. It is also threatening to undermine free speech.
But even before the reaction to the shooting of Gabrielle Giffords led some commentators to claim that a "blood libel" is now being perpetrated against the likes of Sarah Palin, Glenn Beck and the Tea Party in general (see Charles Krauthammer in yesterday's Washington Post and, for a more nuanced response, Dan Hodges in the NS), I felt a chill about the direction of Clegg's reforms. For while our current libel laws are disgracefully abused, much of the sentiment that surrounds the campaign to loosen the policing of what we can and cannot say or print has a much bigger goal in mind.
"Ideally, Britain would move towards a US-style legal bias towards free speech," continued the Independent leader I quoted above. Or, as Natalie Rothschild wrote on Spiked: "While there is a mood for reform, let's scrap these censorious laws altogether."
There appears to be great enthusiasm for the US model (Rothschild even praises Congress for having "gone to great lengths to free American citizens from English restrictions on rigorous reporting"). I cannot share it. I have seen too many instances of where American "free speech" has degenerated into fact-twisting, hate-ranting and straightforward lying – against which no one seems to have anything like adequate legal defence.
Taking the rise
I have mentioned before how lies about John Kerry's Vietnam record could well have lost him the 2004 presidential election. Senator Al Franken devoted a chapter of his 2005 book The Truth (With Jokes) to it, but I would like to reproduce again the Boston Globe columnist Tom Oliphant's conclusions:
You know, we've put a million stories in our waste baskets over the years, because they don't . . . check . . . out. Today, we publish, or we broadcast, the mere fact of the accusation, regardless of whether it's filled with helium . . . We served as transmission belts for this stuff without ever inquiring into its accuracy.
That is what "US-style legal bias towards free speech" has led to. It's also led to more routine distortions. Every time a tax comes up for renewal in Congress, some vote for it and some against. However, those who vote for it are described time and again by their opponents as having supported a tax rise (a serious charge in a country where so many believe that their government may be a force for unending good abroad, but is run by a cabal of thieving liberals ever eager to pick the pocket of Joe Six-Pack at home).
You don't have to be a logician to work out that voting to maintain a tax that already exists is not the same as supporting a tax rise. The levy remains the same. In what sense can it be said to have risen? It doesn't matter. The "transmission belts" of the American media put it out all the same. As for other examples: just why do you think it is that so many in the US seriously believe that President Barack Obama is not a US-born citizen and is also, horror of horrors, a Muslim, too?
I would not like to see the poison of US-style political discourse become the norm in this country. But nor do I trust the British media to act responsibly without considerable legal constraints. As someone who used to write for columns whose every sentence had to be checked by in-house lawyers, I can tell you that it concentrates the mind wonderfully when you are daily reminded that the slightest error could cost the paper several thousand pounds in damages, and possibly your job.
Morals of the marketplace
I can still remember the sense of dread I felt when one column I was overseeing printed the wrong first name in a story not more than 40 words long (it concerned the prison sentence of a son of a famous novelist). "We'll have to pay him £5,000," said the paper's lawyer to me over the phone that evening, with what sounded like considerable glee at my discomfiture. "You're lucky. If he'd asked for £10,000 or £15,000 we'd have had to give it to him."
And, he could have added, my head on a platter, too. I had asked the reporter three or four times to check she'd got the name right. Still the name of his blameless brother went into the paper – which was my responsibility as the column's editor. (Some years later I ran into the individual in question in an entirely different capacity. He was amiable and, far from being worried about the mistake, seemed quite pleased to have been libelled so profitably.)
That was a matter of factual accuracy, not intentional accusation. But if you have a press unconstrained by the requirement to back up accusations with solid evidence, why bother with the facts? Peter Wilby has already written about how the reporting of criminal court cases in England now routinely rides roughshod over the Contempt of Court Act 1981.
It does not bear thinking about the groundless fantasies that, granted the leeway of their American counterparts, would soon fill the news pages and opinion columns (where "fair comment" already allows for more freedom) of British newspapers – and I don't just mean the tabloids.
"A lie gets halfway round the world before the truth has a chance to get its boots on," goes the saying attributed to H L Mencken. The threat of a tiny correction has never done much to impede the globe-trotting of any falsehood. On the other hand, the law which makes a journalist, however devious or low he may be, pause and ask himself "Is this true?" may be an unloved sanction, and one that, yes, sometimes serves to keep wrongdoing unmasked and aid the interests of the rich and powerful.
But it also protects all of us from media that too often derive their morality solely from the marketplace. Will it sell? It would be idle to suggest that a publication should not ponder that consideration when deciding what to print. I would rather at some point, however, that editors also had to weigh up the small matter of accuracy.
One would have to have quite an astounding faith in human nature to believe that this would be guaranteed without some sort of libel law.