FREEDOM OF EXPRESSION AND POLITICAL LIBELS
As with abortion, the requirements of freedom of expression have been a recurring theme in constitutional debate across a range of constitutionalist jurisdictions.[503] Robert Post identifies the central question posed by free speech theorists as ‘how communication [within society] ought constitutionally to be ordered.’[504] Thus, as with race relations and abortion, we are engaged in normative debate which places a high premium on capturing the instrument of doctrine, whose function is to ‘implement the objectives attributed by theory to the Constitution.’[505] Clearly, there are many theories of free speech,[506] and any number of their possible applications.
I will therefore narrow my focus to an issue which enables us to see some of the general difficulties besetting the instrumentalist model of promoting free speech through constitutional adjudication. While seeking the truth and the promotion of autonomy both feature prominently in free speech discourse, it is the goal of fostering a rich and vibrant democratic debate which has recently preoccupied courts and scholars.[507] A number of scholars and activists have sought to advance this broad objective by attacking the constitutional validity of libel laws, which, insofar as they protect the reputation of politicians, are argued to have a ‘chilling effect’, inhibiting the publication of material necessary for healthy democratic debate.[508]Much activity in this area takes its cue from the US Supreme Court’s decision in New York Times v Sullivan.[509] In that case, the Court famously held that public officials were constitutionally barred from bringing a defamation action unless they could prove that the statement about their official conduct was made with ‘actual malice.’ In the US, the case is broadly regarded as a ‘landmark’ whose central meaning must be defended in the name of press freedom.[510] In this regard, the case has provoked a number of doctrinal issues: what are the requirements of the ‘actual malice’ test?[511]; who is included under ‘public figure’?;[512] and what speech is entitled to the benefit of the Sullivan exception?[513] The Sullivan case has also been an influential benchmark in other jurisdictions,[514] whether operating as the backdrop to English courts considering extending the qualified privilege defence to public authorities defamed by deliberate lies,[515] or being invoked by the High Court of Australia in providing new constitutional defences to defamation.[516]
My immediate concern is not to engage with these issues in their own terms— rather, I want to highlight a common understanding as to why it would be important to extend the defence against libel to ‘all matters in the public domain.’[517] We can posit a three-stage process for achieving the instrumental benefits of free speech: First, policy is translated into positive law, thereby removing the right of politicians to sue personally to protect their reputation.
Secondly, the positive law increases the range of speech, in this case through the ‘[un]blocking of the flow of speech’ concerning the conduct of politicians. Thirdly, having used legal instruments to adjust the level of speech in society, a benefit will follow, in present terms ‘enabl[ing] voters to make informed decisions about how they [wish] to allocate political power.’[518] What is deemed most crucial is the first stage in determining policy ends because it is assumed stages two and three will follow: the choice here is between promoting a vigorous democratic discourse[519] or the traditional aim of libel law in safeguarding reputation.[520]In the field of libel litigation, we do not have recourse to empirical data as in the previous studies—we are necessarily in a more qualitative realm.[521] What empirical evidence is available appears to confirm that the ‘chilling effect’ of libel is a real phenomenon in terms of individual decisions taken by editors as to whether to publish.[522] It is not my purpose in this section to dispute this finding—rather, I question whether decisions such as Sullivan will result in the invigoration of public debate supposed by their supporters. Again, I should emphasise the narrowness of my target—I am not suggesting that courts or free speech jurisprudence should be expected to deliver the ideal form of democratic discourse. Rather, I focus on the likely impact of persuading courts to deny the protection of libel to political speech: there are strong reasons to doubt any necessary link between the freedom to publish material, that might otherwise have been inhibited, and an increased quality of political debate.
Scholars working within the normative tradition rely on a number of assumptions about how unregulated communication will secure the instrumental ends that they advocate. The first goes to how expression itself operates, and we can highlight here the emphasis on truth and quantity—the more accurate information citizens have about politicians, the richer will be the public debate, and the better they can hold them to account.
On this view, speech is essentially linear, a mere conveyance of information, flowing directly into readers for their benefit, when true, to enhance political discussion, or to their detriment, when false, then distorting public discourse.[523] This account can be challenged, by contrasting it with developments in linguistic theory[524] and social science research,[525] which perceive communication to be a more complex and multilayered phenomenon. Under this model, which views expression as a reflexive and dialectical process, language and communication are social constructs. Language does not regulate the social world in a direct linear manner, but is itself a product of, and regulated by, that social world, which accordingly constrains the range of meanings which listeners and readers attach to what they hear and read.[526] This suggests that libellous statements do not in themselves have a direct effect in bolstering or undermining a public figure’s reputation,[527] but that the meaning people attach to them is a more complex process, which depends on a number of social variables. One model posits these as including: ‘the pre-publication attitude of the audience towards the plaintiff...; the credibility ascribed... to the publication...; the saliency of the subject matter...; and the interpersonal reaction following exposure to the publication.’[528]If interpretation and context have a central role in ascribing meaning to expression, then considerations of quality not quantity have the more significant bearing on the richness of political discourse. In this regard, legal pluralism suggests that media corporations can no longer be regarded as impartial conveyors of information, but have a key role in the filtering and presenting of data in setting the terms of public debate.[529] This draws on a developed literature in media and communication studies which regards the media as important political actors themselves, who have their own agenda, with powerful means of advancing the same.[530] Focusing on the nature of the resulting normative regime, it has been strongly argued that this is characterised by: the maximisation of profit,[531] lack of serious investigation into established power,[532] and a narrowing of the range of public discourse.
In particular, the consonance of dominant media views, and the neo-liberal political agenda, is highlighted,[533] as evidenced, for example, by the almost complete absence of scrutiny of the political activities of corporations (as opposed to providing financial information to investors).[534] This analysis suggests that if, for example, we focus on the US, the years since Sullivan have not produced a thorough-going marketplace of ideas—indeed, they are marked by the absence of both media diversity and large-scale citizen participation in democratic processes.[535] This, of course, was not caused directly by the Sullivan decision, but it was equally not inhibited by it. Accordingly, we can argue that removing state law sanctions will not by itselflead to a richer amount of material being made available for public debate—this does nothing to address the very real phenomenon of private censorship, where the structural factors listed above combine[536] to inhibit what is released into the public domain.[537]
The conventional constitutional approach to political libels, in assuming the (beneficial) direct effect of court orders on public debate, thus leaves unasked questions about how communication operates, and what are the most important influences on that debate. Yet these questions are central to an accurate knowledge of constitutional adjudication on freedom of expression. The studies referred to above suggest that when we do ask questions about the actual impact of constitutional litigation, we receive answers which cast further doubt on the soundness of the dominant assumption made within normative scholarship about law’s instrumentality.