What if Britain had a First Amendment?

There’s been so much talk about the importance of a free press and free speech lately that I feel as though I’m at a salon with Milton and Locke. In light of the Royal Charter regulating the press and furor around the Guardian’s reporting on and release of classified GCHQ intelligence documents , there’s been a lot of talk, including from former Sunday Times editor Harold Evans, about the UK’s need for an American-style First Amendment. Indeed, I’ve spoken at length about my passion for the First Amendment and the freedoms it guarantees, and I realise that I can’t approach British politics through a British lens because my own perceptions are intrinsically coloured by these deeply ingrained principles.

You see, if in the canon of American civil religion the Constitution is our Bible, the First Amendment is most certainly our gospel. In one run-on sentence, the framers articulated the essence of the new nation, the core principles for which so much Yankee blood was shed and which would transform the world:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of greivances.

Now, I refuse to play the part of the arrogant American who feels Britain ought to adopt the First Amendment verbatim. Though our legal system stems from your common law, the two have understandably evolved differently since separation. I’m not even suggesting that our way is the best way. But I think it’s important to understand what the First Amendment means to Americans before discussing whether Britain ought to adopt it as its own.

The problem is, articulating the first amendment in tangible terms is a challenge. Like our taste for cold and flavourless beer and our belief that every household should be armed like South American guerillas, the First Amendment runs in our blood. We don’t really notice it on a daily basis, because it’s not something we often think about. It just is. The First Amendment is like the air around us-it isn’t really palpable; you can’t really feel it until a storm rolls in.

For that reason, it’s easier to explain what the First Amendment isn’t. It isn’t government intelligence agents ransacking a newspaper office and destroying intellectual property in an attempt to curtail publication. It isn’t sending the police to grandma’s house because she doesn’t like gay people. And it isn’t breaking up a peaceful protest and arresting a lawmaker. I’m not saying America always gets it right either. (See: my alma mater’s horrible policy on freedom of speech in e-mail ; the case of the Legal Schnauzer out of Alabama ; or all of the 1960s.) But by and large, it gets the job of protecting our liberties done.

The First Amendment doesn’t grant permission to be like Jeremy Clarkson on steroids, spouting off every inane thing that comes to mind. It doesn’t mean that you can threaten bodily harm to someone, or falsely report a crime, or the favourite example on this side of the pond, shout fire in a crowded theatre. With great freedom comes great responsibility. I think Spiderman said that, or something close to it.

So what does it all mean? I don’t bloody well know. Asking an American what the first amendment means is like asking a Canadian to define maple syrup. We know it tastes sweet, we know that we love it, and we know that it’s intrinsic to our national identity, but we can’t really tell you why. I suppose it means being able to crassly and tastelessly joke that Prince Harry got a handjob from an Abercrombie manager without fear of the guillotine. It means questioning whether your leaders are who they say they are without penalty or sanity, and it means being able to say the the most vile, repulsive things about me and yet have me defend your right to say it (while laying a verbal smackdown on you, of course).

That’s one of my biggest concerns with the British approach to hate speech. I’m choking on my words right now, but David Starkey articulated it quite well . Britain’s laws against hate speech would never survive under the First Amendment, and thank God for that. As Jonathan Rauch recently wrote in The Atlantic, the freedom to offend minorities is imperative, not only to the cause of liberty, but for the social advancement and acceptance of the minority itself-a similar, if not an exact, argument to that of Starkey. “The best society for minorities,” Rauch writes, “is not

Political cartoon by Robert Ariail. First published in the Spartanburg Herald-Journal.
Political cartoon by Robert Ariail. First published in the Spartanburg Herald-Journal.

 

the society that protects minorities from speech but the one that protects speech from minorities.” Indeed, its only by exposing bigotry and ignorance in the public sphere that we can attack it head on and continue to win not only legal but social equality. This applies to gay, Muslim and black Britons today as much as it applied to open disdain for the working class, suffragettes and papists in days gone by. It’s hard to attack an enemy in the shadows, and laws restricting speech push bigots into the night, where they silently seethe with contempt, stifling not only their own hatred but any chance for social growth. Or, to put it another way, you have to counter speech with more speech, not less speech.

Of course, the primary medium for speech has historically been the press. On last week’s Question Time, Paris Lees asked what made newspapers so special that they needn’t be regulated by Parliament. Well, it’s quite simple: for 300 years the British broadsheets have been the conduits of liberty and democracy, as outlined by more than 70 human rights organisations in an open letter to David Cameron. Similarly, Louise Mensch brilliantly makes the point while simultaneously taking the press to task for its own meandering failures. Laws regulate what is or isn’t shown on television, as they also do in the United States, because the First Amendment provides leeway for some censorship of material deemed contrary to public taste and decency, but it’s a fine line and one which is frequently challenged.

But saying that you can’t show nekkid people before the threshold isn’t the same as restricting what can be reported on; nobody dare argues that the journalistic integrity and independence of the BBC ought to be regulated. Likewise, as an American, the thought of a government agency-even one as loosely affiliated with Westminster as that established by the royal charter-sits very uneasy. As schoolchildren, Americans learn of John Peter Zenger, a German-American writer johnpeterzengerwho successfully defended himself against charges of libel and is widely regarded as the Ron Burgundy of the eighteenth century. The Supreme Court has upheld the freedom of the press to print the Pentagon Papers, and set the bar very high for plaintiffs to claim libel in New York Times vs Sullivan, birthing the so-called “Sullivan defence” mandating that the plaintiff prove “actual malice” was involved and intentioned, citing and strengthening press freedoms. The UK, on the other hand, has no Sullivan Defence, and it is much easier to prove libel in Britain than America. A First Amendment, though, could feasibly alter British libel law, and in the United States has continually prevented government (and any public figure) from meddling in what our newspapers report. Still, we’re by no means perfect, as evidenced by the arrest of journalists covering the Occupy movement and the treatment of Michael Hastings prior to his fiery and mysterious death led to an outpouring of shock and grief from journalists around the world, even though his family continues to insist he wasn’t murdered.

It’s for this reason that Reporters Without Borders ranked the United States three spots behind the United Kingdom in this year’s Press Freedom Index, though the US rose fifteen spots from 2012 in large part because of public outrage about the detention of the Occupy journalists. The United Kingdom, is it reasonable to say, should expect its ranking to plummet in light of the current fires of regulation and oversight the Government and Hugh Grant have stoked. David Cameron’s warnings of consequences to publications disclosing the Snowden leaks , as well comments by Conservative Party Chairman Grant Shapps’ on reforming the license fee, widely interpreted as a threat to cut the BBC funding unless it produced more favourable reporting on the government, are about as helpful as sending Pétroleuses or Mrs. O’Leary to put that fire out.

The debate about a free press and free speech isn’t contained to the broadsheets, though. As important as it is to protect the rights of the good and noble, it’s just as important to protect the rights of the tasteless and crude (here’s looking at you, Jack Whitehall.) In the United States, that means protecting the smut published by Larry Flynt, who recently gave an interview touching on free speech to the BBC’s Newsnight. In the United Kingdom, it’s Page 3. Despite an online petition to ban Page 3 (which, in case you’re gay or American or both, is a page in The Sun with scantily clad women), David Cameron has said he doesn’t support it, despite his admittedly noble but ultimately flawed plan to filter internet porn. That’s a good Tory, because curtailing the freedom of a paper to publish what it will and of consumers to vote with their pocketbooks is decidedly antithetical to small-c conservative principles. Oh yeah, and democracy.

A similar First Amendment argument can be made against the oft-debated banning of the burqa or niqab. This has come up a lot in the last few years, especially following France’s outright ban on full face coverings, and most recently in September, when a judge ruled that a woman could not give evidence in her own trial whilst wearing the veil. Ken Clarke seems to support it, but Baroness Warsi summed it up as un-British. “I think people should have the right to wear what they want in this country,” she said. “Women won the right on what to wear many, many decades ago.” Well, yeah. Baroness Warsi speaks pointedly of the feminist arguments, echoed earlier this fall by Laurie Penny, who drew the conclusion that this isn’t just an issue of sexism, but also of Islamophobia. But if Britain had a First Amendment, would this even be a topic of debate?

Probably not. Take, for example, the case of two Christian women who appealed to the European Court of Human Rights to be allowed to wear crosses on the job. This case would be easily decided in favor of the plaintiffs on this side of the Atlantic, as is evidenced by the prolific case law on religious freedom. Similar is the case of Celestina Mba, a Christian who was sacked for refusing to work on Sundays. She lost her appeal. Accross the pond, though, the Civil Rights Act 1964 requires employers to make “reasonable accommodations” for people of faith, as a nod to freedom of worship and the First Amendment.

Now, this isn’t to say Americans aren’t bigots. Duh. We’re the nation that produced Michael Savage and Mel Gibson. Look at the ongoing struggle of Muslims in Murfreesboro, Tennessee to simply have a mosque, which while being challenged on planning and zoning laws, is rife with religious subtext-and, also, less-subtle nods to Islamophobia, including the plaintiffs citing fears about “sharia law” and “terrorists.” The Tennessee Supreme Court refused to take the case, allowing for an appeal to the US Supreme Court. Then there was the furor of the pastor burning the Koran in Florida and the New York mosque built close to Ground Zero, which had striking parallels to the case of mosque being built on the eastend of London several years back.

Despite the wishes of the good denizens of Murfreesboro, the First Amendment doesn’t give way to a right to discriminate in the public sphere, though-at least not really. Your rights end where mine begin, and in 2009 I made the argument that it was right to sack a Christian registrar who refused to officiate same-sex civil partnership ceremonies. The same goes for the Christian couple that wanted to ban gay people from their bed and breakfast. If you’re offering a public service or operating in the free market, you must abide by certain rules, and one of those rules is that you gotta play fair. It’s oft said that freedom of religion is freedom from religion, which is why the Supreme Court banned school-led prayer but not prayer in schools. The distinction is fine yet clear-free exercise of religion in a public sphere is acceptable, but the public sphere exercising religion is not. Frankly, it’s always baffled me why the United Kingdom-with an established church-is so antsy about the former. (If I ever meet Owen Jones, I’ll ask him.)

Less convoluted than the muddy waters of religion, though, is the the freedom of assembly. Two years ago I was living with a rather senior member of the Occupy Chicago movement-well, as senior as a horizontal leadership structure can allow-who was arrested for refusing to leave Grant Park after hours. The Occupy folks didn’t have a permit, which led to quite a few of them spending the night in jail. Still, the right to freely assemble is often cited by those staging protests, such as the storied

Caroline Lucas, the Green party's only MP, was arrested for protesting fracking

Caroline Lucas, the Green party’s only MP, was arrested for protesting fracking

March on Washington. From what I can tell, Britain’s pretty good on this one too, and the aforementioned fracking protest with Caroline Lucas was busted for reasons similar to the Chicago Police breaking up and arresting the Grant Park occupiers. The difference seems to be that the Balcombe protesters believe the police were ‘heavy handed’, while shockingly, the folks in Grant Park thought CPD did a fair job of things. This isn’t always the case. Birmingham police turned hoses and attack dogs on children in the Civil Rights Movement, and Chicago Police notoriously brutalised protesters at the 1968 Democratic Convention. And none of this has to do with the First Amendment and everything to do with alleged police brutality, though the First Amendment could feasibly be construed to ensure the people have a right to assemble in a public space. In fact, this was pretty much the mantra of the Occupy Chicago protestors, and regardless of what you think of them, the First Amendment allows a compelling argument to be made.

What’s also compelling, if only for both its blatancy and banality, is the right to petition. It’s oft overlooked in American discourse, because really, writing a Congressman isn’t nearly as flashy as giving a speech on the steps of the Lincoln Memorial and certainly less scandalous than posing on Page 3, unless of course you were writing to former Congressman Anthony Weiner. But it’s important to note that the right to petition grievances was one of the primary factors propelling the thirteen colonies to separate from the motherland. Thomas Jefferson famously wrote, in the Declaration of Independence, that “…in every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury,” and provided just cause for insurrection and independence. That King-in-Parliament wouldn’t hear-or rather, validate-the concerns of the colonists was the driving force behind its inclusion in the US Bill of Rights.

What most Americans don’t realise-and would be loathed to admit-is that this right already existed under the British constitution. It’s included in the Bill of Rights 1689 (called the “English Bill of Rights” over this way). So that’s not exactly a novel American concept.

Really none of it is, as pretty much all of this has its roots in Magna Carta or subsequent acts of Parliament. But don’t tell my compatriots that, because it’ll just hurt their feelings. America likes to think it invented liberty. Of course, it didn’t. But it did codify it in a succinct and explicit way, providing the framework for American case law, in turn allowing for the growth of those freedoms, which developed in a way distinct of their British antecedents.

It’s for this reason that looking at what a First Amendment would really mean for contemporary Britain is so interesting, and frankly, needed. The roots are the same, but the blossoms quite different, and in the more than two centuries since our two countries parted ways, my side of the Atlantic has taken things on a slightly different trajectory, ensuring personal liberties over collective cohesion. This is purely anecdotal, but it seems to me the British public prefers it this way. From Question Time/Big Question audience reactions to debates about multiculturalism and secularism to broad support for the HackedOff charter (because really, that’s what it is), and even in conversations with British friends who just don’t understand why we allow the Westboro Baptist Church to picket everything from funerals to fun parks, the Brits seem to like things the way they are. And that’s fine. While I personally feel very concerned about press freedom in the UK, overall, it’s still a functioning democracy. Still, it’s an interesting notion, and as the debate over religious freedom, hate speech, and press regulation continues, I imagine one that will resurface from time to time. Best be prepared.

For an interesting, more learned, and British(!) perspective on this issue, see Jonathan Peters’ July 2012 interview with Lord Lester in The Atlantic.

One thought on “What if Britain had a First Amendment?

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