Read You Can't Read This Book: Censorship in an Age of Freedom Online
Authors: Nick Cohen
Tags: #Political Science, #Censorship
You Can't Read This Book: Censorship in an Age of Freedom (29 page)
Those of us who thought that English judges did not know the difference between John Milton and Milton Keynes listened with wonder as the Lord Chief Justice remembered which country he came from, and aligned himself with its best traditions. ‘To compel an author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth,’ he said, and then quoted the passage from the
Areopagitica
where Milton recalled meeting the persecuted Galileo in Florence in 1638. ‘I have sat among their learned men’, Milton said of the Italians who entertained him, and ‘for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; … that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.’
The judge did not quite say that English libel law was as great a threat to scientific thought as the Inquisition’s order to Galileo to recant his belief that the earth went round the sun. But he saw a valid comparison, and said ‘that is a pass to which we ought not to come again’.
Modern culture despises politicians. In newsrooms or on satire shows, no lawyer stops journalists and comedians from mocking them, because politicians generally don’t sue. Most have thick skins, and those who do not know they will look ridiculous in the eyes of their voters if they go to court. In my experience, politicians are more open than the supposedly liberal judiciary. They are certainly more protective of the reputation of their country. The United Nations had condemned Britain. After the Saudi plutocrat Khalid bin Mahfouz used English law to attack books that American houses had not even published in England, President Obama signed a law that stated that the US courts should not enforce the orders of English judges against American authors. Now scientists were telling the judges that lawyers for cranks and pharmaceutical corporations were threatening free debate about public health.
Politicians honoured Simon Singh’s bloody-minded refusal to bow before pressure by agreeing to reform. In the run-up to the general election of 2010, all three main political parties made a manifesto commitment to reforming the libel laws, after fifty thousand voters signed a petition defending free speech and free enquiry. The victorious Conservative/Liberal coalition government honoured its promises and proposed making it far harder for libel tourists to use the London courts to punish their critics. Ministers also wanted a strengthening of the defences available to writers, and in a nod to John Stuart Mill, they added that claimants must prove they had suffered substantial harm before they could sue. There were many gaps in the draft Bill. The presumption of guilt still lay on the accused, and more seriously, the cost of libel actions looked as if it would remain formidably high.
At the time this book went to the printers, it was not certain that Parliament would pass the measure into law. Even if it does, the most striking feature of the reform campaign was its timidity. English radicals are remarkably conservative, and the reformers did not ask Parliament to adopt the American system and allow citizens to say and write what they pleased about public figures, as long as they did so without a negligent disregard for the truth. The police and credit reference agencies can pass on false information and the citizen cannot sue them for libel unless they act with malice, yet the law continues to demand that the public debates of a democracy must be constrained.
If reformers had been braver, they might have argued that giving primacy to freedom of speech would not allow the worst aspects of American culture to implant themselves in Britain. The First Amendment did not permit radio shock jocks and Fox News to flourish in the US. On the contrary, the courts had ruled that America’s ‘fairness doctrine’ – which required broadcasters to cover matters of public importance and to give airtime to contrasting views – was compatible with constitutional protections for freedom of speech. The judges held that because only a limited number of stations could fit onto the broadcast spectrum, the state had a right to prevent their owners from delivering unbalanced or propagandistic journalism. ‘There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others,’ the Supreme Court said in 1969. ‘It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.’
Free-speech legislation did not undermine the fairness doctrine, rather in the 1980s the American political right, led by officials in the Reagan administration, began the task of dismantling the regulatory controls which required broadcasters to air balanced journalism. Today’s European broadcasters who yearn to deliver similarly hectoring and prejudiced journalism say that cable television and the Internet have destroyed the reasons for legally enforced impartiality. Technological advance has removed the spectrum scarcity which limited the number of channels, so how can countries like Britain justify restricting what they broadcast? But even though cable and the Web have created a space for every type of political view, one can still argue that television and radio broadcasters should be treated as special cases.
In everyday life we accept differing standards in differing circumstances. We have a right to swear when we are at home or with friends. If an employer were to dismiss us for swearing at customers or clients, we would not say that he or she was infringing our rights to freedom of speech. There is no public-interest defence for swearing at customers, and we could still swear in other circumstances. Similarly, society is entitled to say that there should be a corner in the marketplace of ideas where journalists and their managers and owners must respect notions of fairness and balance, particularly when radio and television stations continue to be controlled by the state or by wealthy individuals and corporations.
A more dangerous American development has been the ability of lobbyists to use free-speech legislation to overturn restrictions that had existed since the early twentieth century on corporations and trade unions funding attack ads during elections. A US Supreme Court decision passed by a margin of 5–4 in 2010 effectively gave every organisation the right to sponsor propaganda. At first glance the ruling appeared logical: why should corporations not enjoy the same rights as individuals, newspapers and bloggers to say what they wanted in an election debate? Its logic fell apart under closer examination, and the perverse verdict is ripe for overturning. Corporations and trade unions are not individuals but collectives, which is why the law should never allow them to sue for libel. They cannot vote or run for office, and corporations may be controlled by foreigners who cannot vote or run for office either. It is unlikely that every shareholder, customer or employee of a company, or every member of a trade union, will agree with the political stance the controllers of the collective take in an election campaign. When a company board or a trade-union committee takes a political stance, it forces dissenters to pay a de facto tax to subsidise views with which they profoundly disagree.
The US Supreme Court ignored the distorting effects of big money on debate. Or as Justice John Stevens said when he dissented from the view of the majority of his fellow judges, ‘At bottom, the Court’s opinion is a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.’
Arguments about the distorting effects of special interests on democracy are as old as representative government. The novelty of the present lies in the new argument that we no longer need to worry about the power of religion, money or the state. The Singh case and many battles like it appeared to prove that the Web had made the old debates about restrictions on freedom of speech redundant. Singh’s supporters, like the supporters of so many other modern causes, had used the new technologies to circumvent legal restrictions. Optimists could say that their success showed that we were moving into a new world, whose liberalism would make past generations blink with astonishment. All of a sudden, debates about blasphemy, libel, electoral laws, campaign finance and constitutional protections appeared leftovers from the analogue age. The wonder of the Web had dispatched the concerns of the past to the dustbin of history. Now we could write what we wanted, and no one could stop us.
In our age there is no such thing as ‘keeping out of politics’. All issues are political issues.
GEORGE ORWELL
, 1946
Tyranny’s new nightmare: Twitter
LOS ANGELES TIMES
, 24
JUNE
2009
If I had been writing a book on censorship before the invention of the Internet, I would have concentrated on two subjects that have hardly featured in these pages: the power of the state in its dictatorial and democratic forms to suppress criticism; and the power of private and public media conglomerates to control debate. They dominated thinking about freedom of speech in the twentieth century, but by the twenty-first appeared less important than at any time since the highpoint of Victorian liberalism.
To understand how the culture has changed, look at what George Orwell wrote about censorship after he attended a meeting in 1944 to commemorate the tercentenary of the publication of Milton’s
Aeropagitica
. At that time, the dominant mood in intellectual London was one of sympathy for Stalin’s Soviet Union. Although Milton had argued for freedom of thought, Orwell found that communists and their fellow travellers at the celebration adopted the Marxist position that bourgeois freedoms were illusions, and intellectual honesty was a form of antisocial selfishness: ‘Out of this concourse of several hundred people, perhaps half of whom were directly connected with the writing trade, there was not a single one who could point out that freedom of the press, if it means anything at all, means the freedom to criticise and oppose.’
Democratic Britain imposed its own censorship during the war and before it: through direct state controls on what writers and reporters might say, and more circuitously through the informal pressure publishers put on writers to say nothing that might undermine the nation’s struggle against its enemies. The pressure was subtle but unremitting, and Orwell sighed that no one had been able to escape the ‘continuous war atmosphere of the past ten years’.
He was as depressed by the economic constraints on writers as the ideological pressures. ‘In our age, the idea of intellectual liberty is under attack from two directions. On the one side are its theoretical enemies, the apologists of totalitarianism, and on the other its immediate, practical enemies, monopoly and bureaucracy.’ The unwillingness of the public to buy books meant that if writers wished to see their work published, they had to seek work in newspaper offices or film studios, which were in the hands of a few rich men, or at the stations of the publicly owned BBC radio monopoly. The alternative was to sell themselves as propagandists and draw wages from the Ministry of Information or the British Council, ‘which help the writer to keep alive but also waste his time and dictate his opinions’. ‘Everything in our age conspires to turn the writer and every other kind of artist as well, into a minor official, working on themes handed down from above and never telling what seems to him the whole of the truth.’
The tight-fisted public is as unwilling to buy books as ever, but much else about Orwell’s description feels dated. Although Western troops have been fighting since 9/11, Orwell’s ‘war atmosphere’ has not intimidated writers as varied as investigative reporters trying to find the truth about the second Iraq war, and malign fantasists peddling conspiracy theories. Far from fearing or respecting war leaders, journalists have treated them with the utmost contempt. As they did, they illustrated an unacknowledged truth about contemporary writing: reporters, editors and artists in Britain, America and most of Europe are not afraid of politicians. They are frightened of Islamists, and do not run cartoons that might offend them. They are frightened of oligarchs and CEOs, and worry about libel and the ability of the wealthy to bend the ear of their proprietors. But they are not frightened about leaking the secrets or criticising the actions of elected governments. One can map the shift of power from the state by tracing journalists’ fears as the twentieth century progressed. In 1936, all British newspaper proprietors reached a ‘gentlemen’s agreement’ not to mention Edward VIII’s affair with Wallis Simpson for fear of offending the monarchy. In 2006, all British newspaper editors made an unspoken agreement not to run the Danish cartoons for fear of offending Islamists. In the 1930s, the public woke up to discover that their king was about to abdicate because he was determined to marry a divorcee, without their media forewarning them. In our time, the public woke up to discover that their banking system was about to collapse, without their media forewarning them.
In Western countries, the power of the state to intimidate its civil servants was little greater than the power of businesses to enforce silence on their employees. America and Israel were the exceptions, as so often, and clung on to the traditions of the old nation state that were fading in Europe. The Israeli courts imprisoned a soldier who leaked military secrets which suggested the army followed an illegal shoot-to-kill policy. Meanwhile, when the American soldier Bradley Manning passed thousands of cables from the US State Department to WikiLeaks, a vindictive Pentagon held him in solitary confinement. But even the American authorities made no attempt to stop US newspapers publishing the WikiLeaks secrets. The cases of two British civil servants who released batches of secrets provided a better guide to the weakness of the twenty-first-century democratic state. In 2003 Katherine Gun revealed how the British intelligence services were bugging the United Nations at the behest of the Americans in the run-up to the second Iraq war, and in 2006 Derek Pasquill showed how his employers at the Foreign Office were allowing the Muslim Brotherhood to influence British policy. In both instances, the government threatened to teach its servants not to embarrass their masters in wartime by prosecuting them for breaking the Official Secrets Act. In both instances, it dropped the threat of trial and imprisonment for fear that jurors would show how unimpressed the public was by the ‘continuous war atmosphere’ by acquitting them.
Warriors in the War on Terror attempted to attack freedom of speech, although nearly all the arrests were in Russia, China and the Arab dictatorships, who used the war as another excuse for clampdowns they would have authorised anyway. The British Labour Party tried to enforce a new offence that would punish anyone who ‘glorifies, exalts or celebrates the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism’. Prosecutors might have used it legitimately against people who were directly inciting murder, or illegitimately against citizens who expressed sympathy with terrorists. As it was, they did little worth recording. Politicians in the 1997–2010 Labour government became notorious for issuing bloodcurdling threats to please press and public, and then doing nothing. Their attempt to restrict freedom of speech in wartime was no exception to the rule. The handful of cases where the state attempted to censor alleged Islamist sympathisers showed only how far Britain was from martial law.
Managers at Nottingham University reported a student to the police for downloading an al Qaeda training manual. It turned out that the material was freely available in the US, and that the suspect was researching rather than practising terrorism. He was released without charge, and successfully sued the police for false arrest. The courts jailed five men from Bradford who had downloaded pro-jihadi sermons featuring all the usual hatreds. The Court of Appeal freed them on the Millian grounds that in England the state should prosecute you for what you did, not for what you read. The strangest case was that of a young Muslim woman who worked at Heathrow Airport, a likely terrorist target. She collected books on how to poison, shoot and bomb, and wrote poems in praise of murder. In ‘How to Behead’, she said:
No doubt that the punk will twitch and scream
But ignore the donkey’s ass
And continue to slice back and forth
You’ll feel the knife hit the wind and food pipe
But don’t stop
Continue with all your might.
She was in love with death, but there was no evidence that she was involved in terrorism, and the court gave her a suspended prison sentence. Her mild punishment, which was subsequently overturned by the Court of Appeal, stood out because sentences for any kind of anti-government speech were so rare. Western democracies managed to fight without imposing restrictions on freedom of speech. Instead of Orwell’s ‘war atmosphere’, there was an anti-war atmosphere. If the government had wanted to charge those who said that Islamist violence had nothing to do with Islamist ideology and was solely a response to Western provocation, it would have had to arrest a quarter of the public and three-quarters of the intelligentsia.
Meanwhile, Orwell’s world of media monoliths that writers must appease if they wished to be published vanished. The BBC’s monopoly was broken in the 1950s. By the 2000s, there were hundreds of TV channels and radio stations. If a writer, producer, journalist or actor crossed the BBC, it no longer meant an end to a broadcasting career. Newspapers remained under the control of corporations and plutocrats, but the Internet so undermined what power they had that by the 2010s media commentators were wondering if the ‘dead tree’ or ‘legacy’ press could survive.
The Net achieved more than that. For all his fame as a futurologist, Orwell never predicted a final change. Enthusiasts hailed the Internet as the most important advance in communications technology since the invention of movable type in the 1450s. They may have been right, although it is too early to say. When they went on to announce, however, that the new age of transparency would free humanity from the constraints imposed by political power, they endorsed a faith as utopian as the communism that Orwell opposed.
Welcome to Utopia
In 1996, as the jubilation about the possibilities of the new technology was building, John Perry Barlow, a former lyricist for the Grateful Dead, stood as defiantly as Martin Luther and issued a thunderous manifesto. His audience was not a revolutionary crowd outside a dictator’s palace, but the politicians and CEOs meeting at the global elite’s annual beanfeast at Davos in the Swiss Alps. The object of his protest was as bewildering as its location: a proposal from the Clinton administration to deregulate the telecommunications industry.
The president was as prepared to annul America’s old controls on cross-media ownership, as he was willing to shred the old restrictions on bank ownership. But Barlow had no complaints about corporations funding the politicians who passed the laws that increased corporate control of the airwaves. What stirred his passion and ignited his radical rage was a rider to the main Bill. Christian conservatives had insisted that there should be provisions to control the circulation of indecent material on the Internet. Their protests were ludicrous posturings to please the Christian core vote. As they must have known, their planned censorship conflicted with the First Amendment. The Supreme Court duly stuck down the measure as unconstitutional. But Congress’s suggestion that democratic legislatures might regulate the Internet, even though in this instance they could not, provoked Barlow to issue a ferocious denunciation of the futility of state regulation, which must have pleased the bankers and executives enjoying the Alpine air.
‘Governments of the Industrial World,’ his Declaration of Independence of Cyberspace began, ‘you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather … We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.’
Barlow cut a ridiculous figure: ‘a Deadhead in Davos’ who dressed an argument for unregulated markets in the clothes of red revolution. ‘Barlow may have sounded like an alienated counter-culturist as he railed against the Telecoms Act,’ wrote the left-wing American critic Thomas Frank, ‘but he essentially agreed with the suit-and-tie media execs on the big issue – that markets enjoyed some mystic, organic connection to the people, while governments were fundamentally illegitimate.’
Everyone with knowledge of recent history now realises that Clinton’s deregulation of the banks led to a disaster, and new controls are essential. But most people who think about censorship agree with Barlow that attempting to censor what appears on the Net is not only pernicious but pointless.
What seemed in the mid-1990s to be the burblings of the plutocracy’s pet hippy is the conventional wisdom of our day. The Internet had rendered traditional diplomacy obsolete, declared a wide-eyed Parag Khanna of the New America Foundation, a think tank for futurologists. There is no point worrying about old-style foreign policy, because non-governmental organisations and ad hoc networks linked by social media will soon replace it. Networking will achieve ‘universal liberation’ – no less – ‘through exponentially expanding and voluntary interconnections’. The liberators will not be philosophers, the radicalised masses or political leaders, but celebrities, who ‘possess one of the core ingredients of diplomatic success: prestige’. He held out the example of Madonna to convince doubters: ‘Her resilience and tirelessness [are] the reasons why she remains at the top of her game. Regular diplomats should learn from her staying power.’ Gordon Brown said that the new technologies ensured that ‘foreign policy can no longer be the province of just a few elites’. The world was becoming a global village, where ‘you cannot have Rwanda again because information would come out far more quickly about what is actually going on and public opinion would grow to the point where action would need to be taken’. It never occurred to Brown that a genocide comparable to Rwanda had taken place in Darfur in western Sudan in 2003, and the wired world had done nothing to stop it. Hillary Clinton and many others believed that dictatorships would soon go the way of genocidal militias. If a despotic regime censored the Net, its businesses would not have access to global sources of news, and their trade would suffer, she argued. They must allow the free flow of information or pay the economic price, because ‘from an economic standpoint, there is no distinction between censoring political speech and commercial speech’.