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Leave it to the British, and their compulsive obsession for appropriateness, to take politische korrektheit to the next tyrannical level by suppressing free speech in the name of a fair trial.
The government's attitude was hostile. In 1671, Governor William Berkeley of Virginia wrote: "I thank God, there are no free schools nor printing and I hope we shall not have, these hundred years, for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both." The British government once told the governors of Massachusetts, "Great inconvenience may arise by the liberty of printing."
Libel. Technically, libel and defamation are statements that impugn and impute the character or motives of a person. Unfortunately for the victim, truth is always a defence on a charge of libel. "You called me a thief!" "But you are a thief, let me prove it..." The "victim" could come out worse than before.
To work around this inconvenience, government came up with the concept of seditious libel -- any conduct or speech deemed by authorities as having a tendency to undermine the established order. In England, speech was seditious if it brought the Crown or any branch of government into "hatred or contempt" or if it promoted discontent or hostility between citizens. Truth was not a defence.
In the United States, once sedition and insurrection against the Crown had proved successful, government went back to its old habits. In 1798, President Adams pushed through what is known as the Alien and Sedition Acts, section (2) of the latter making it a criminal offence to,
The American legal historian, Leonard W. Levy states that seditious libel "has always been an accordion-like concept, expandable or contractible at the whim of judges."
Personages like Senator Feinstein in the United States, former Justice Minister Heiko Maas in Germany and the Honourable Judges Marson and Norton always invoke the Highest Objectives in pursuit of repression. Thus, Feinstein once questioned whether the First Amendment "covered" printing manuals "on how to make a bomb." One might as well wonder how much chemistry one is free to teach. In seeking to free the net of so-called hate speech, Maas brilliantly stated that "free speech ends where the criminal law begins." And where exactly, one might wonder, is that? What the state wishes to repress it first criminalizes. Surely Goebbels understood that. Thus too, according to Judge Norton silencing Robinson "is about preserving the integrity of the jury to continue without people being intimidated or being affected by irresponsible and inaccurate ‘reporting’."
The statement is worth pondering for the way in which it mixes High Objective with insinuations of criminal conduct.
No one has accused Robinson of jury tampering. He has not suborned perjury, procured witnesses or bribed jurors. Robinson did nothing to undermine the integrity of the jury to hold and continue deliberations. No one has a "free speech" right to bribe jurors but that issue was simply not on the table.
Note how Norton switched pods in her verbal shuffle. She did not state, "without jurors being intimidated;" she switched to talking about people being intimidated. Jurors are people but not all people are jurors. Surely Norton, a trained jurist, understood that.
The switch was crafty. What Norton meant was that it was necessary for the jury to deliberate without the public being affected by "irresponsible" reporting. She confused "jury" with "public" and "intimidated" with "affected" simply to muddy up what she was about. However, the whole point of a free press, of public comment on public matters is to affect people on the issue at hand.
This right should not be evaded by labelling the effect an "intimidation." Short of assaults or specific threats people in public have to put up with the rough and tumble of life. No one should expect to turn the entire public space into his or her personal safe space. To ask as much is to turn society into a prison in which everyone is required to keep to his small space.
The proposition Norton really advanced was that government has a right to conduct its business without the public being affected by "irresponsible" controversies. Although Judge Marson has not enlightened us with his/her thoughts, one assumes that the gag order was motivated by the same High Objectives. The concept of free speech held by the likes of Norton, Marson, Maas and Feinstein is that of an embalmed corpse. Speech which does not inconvenience, which does not provoke, which does not pinch toes, which does not hurt, is free speech that is not worth a damn. James Madison, the chief architect of the American Bill of Rights, understood this perfectly. In Federalist Paper No. 10 he wrote,
Guardians of public discourse have a notion of free speech that is decorous, restrained, sorta academic, like Spinoza, Luther, Ralph Waldo Emerson or David Brooks of the New York Times... fit for print and fit for the Publice Broadcasting System's "two (acceptable) sides" of any issue. But if these guardians actually read Spinoza or Luther -- if they even knew something about them over and above that they existed and were "great" -- they would realize that no decorous, restrained, academic discourse is worth a damn if it doesn't blow the roof off the house. That is what "great books" do.
Make no mistake, Robinson is no Luther and no Socrates. He is not even a Mencken or an Assange. But he is a gadfly. He is provoking and calling into question the British Establishment's "mulit-ethnic" and "multi-cultural" concept of society. It is pointless to argue that his views are racist, that they offend some or even a majority of people, or that they "call into the question the fundamentals of our civil society." So what? Who decreed what those fundamentals are and who decreed that they cannot be questioned? The fundamental of liberal democracy is that anything can be questioned including its own fundamentals. Anything less is neither liberal nor free.
Robinson might be styled a political paparazzi. His reporting is designed to bait, provoke and make a point. No doubt his "points" are likely -- if they are not designed -- to emotionally affect and hurt the feelings of the foreign born or Muslim segments of British society. He is clearly arguing against their civic interests. But again, one has to ask, so what? People who think politics ought to be some sort of badminton game on manicured lawns think as much only because their position of privilege insulates them from being truly affected by the myriad of decisions made at Westminster. Politics is warfare by other means.
There are of course limits. Actual, present incitement of an imminent harm -- such as urging a mob to lynch a person or to burn down an asylum centre -- is properly made criminal. But, in the United States at least, words and conduct which merely have a tendency to adversely affect, or to "potentially affect," someone or some status quo are not considered "incitement." (Brandenburg v. Ohio, (1969) 395 U.S. 444 Stringing connective "causalities" is the game of sophists and tyrants.
Similarly, there is a point at which undue publicity can affect the impartiality of a trial. But again, in the United States at least, the effect has to be continuous and overwhelming. (Sheppard v. Maxwell, (1966) 384 U.S. 333.) In addition, any prior restraint on publicity must take into account free speech interests.
And not only "free speech" but the right as well to a public trial. (U.S. Const. Sixth Amendment.) For a public trial is one which the public is free to comment on. The two rights are inseverable. A court can impose a gag order on attorneys and even on witnesses. It can, in extreme cases sequester the jury. It can take measures to protect the visible identity of a witness. But it can never, ever, prohibit the public from attending the proceedings, assembling outside the courthouse or commenting on or protesting the case.
The Contempt of Court Act of 1981, is the real scandal here -- a legal accordion to suppress whatever a judge decides to label as a "substantial risk of prejudice." Judges Marson and Norton were not about justice but at suppressing "seditious" speech. In this instance, Britain needs to take a lesson from her erstwhile colonies who, in this respect, stood for the better half of English traditions.
© 2018 Woodchip Gazette
To whom it may concern: no member of the Gazette is a British subject and the Gazette's servers are not within any U.K. jurisdiction.
See:
http://www.history.org/foundation/journal/spring03/journalism.cfm
http://www.history.org/foundation/journal/summer03/wilkes.cfm
https://thehistoryofparliament.wordpress.com/2013/04/23/the-treaty-of-paris-john-wilkes-and-north-briton-number-45/
Update 1 August 2018
An appellate judge, quashed the trial court's judgement and ordered Robinson released. "In his written judgement, Lord Burnett said: "We are satisfied that the finding of contempt made in Leeds following a fundamentally flawed process, in what we recognise were difficult and unusual circumstances, cannot stand."
That's what we said.
https://www.bbc.com/news/uk-england-leeds-45029755
The Facts of the Matter
Tommy Robinson is a xenophobic white nationalist who opposes open immigration in the name of "multi-culturalism" and under the banner of the European Union's so-called Four Freedoms. He had been a founder of the politically punk English Defense League, more or less dedicated to beating unwanted, brown immigrants out of the country. After a spell in prison for these activities, Robinson forswore the E.D.L.'s tactics. Nevertheless, by any fair measure, Robinson remains a scoundrel and a provocateur in the mold of John Wilkes of North Briton 45 fame.
Like Wilkes, one of Robinson's political tactics is to report on matters which the Government find inconvenient -- in this case the trial of several Muslim gang members accused of organized sexual offences, including the grooming of young girls for sexual purposes. Because of the sensitive nature of the trial, the judge of the case, one Honourable Judge Marson QC, issued a "reporting restriction" prohibiting the publication of "any report" of the proceedings until the conclusion of the trial.
Like Wilkes, one of Robinson's political tactics is to report on matters which the Government find inconvenient -- in this case the trial of several Muslim gang members accused of organized sexual offences, including the grooming of young girls for sexual purposes. Because of the sensitive nature of the trial, the judge of the case, one Honourable Judge Marson QC, issued a "reporting restriction" prohibiting the publication of "any report" of the proceedings until the conclusion of the trial.
The British press obeyed like cowed puppies. However, on 11 May before the gag order was imposed, papers did report on the trial, viz:
"Twenty nine people – mostly from Huddersfield – facing a total of more than 170 charges relating to the sexual exploitation of 18 children will go on trial next year in three separate groups, a judge has ruled.
Twenty-six men and two women appeared before a judge at Leeds Crown Court today charged with offences including rape, trafficking, sexual activity with a child, child neglect, child abduction, supplying drugs and making of indecent images of children. The 29th defendant, who is in custody, did not appear for the hearing on Thursday."
This report, from the Huddersfield Daily Examiner, included the names of each of the defendants together with a synopsis of the charges against them. The report also included the defendants' pictures leaving no doubt as to their ethnicity. The basic facts of the legal action in the Crown Court at Leeds was public knowledge well before 25 May, the date of "reporting restriction."
On that date, Robinson stood outside the Leeds courthouse reporting on the absence of any reporting of the case. It was a rainy morning and virtually no one -- certainly no crowd -- was around. A shaky cell phone video showed Robinson approaching a couple of the defendants as they entered the courthouse, seeking to elicit their reactions to the case. Their not unpredictable reaction was to angrily flip him the bird. One of these defendants turned toward Robinson before being pulled inside by his cohort.
Robinson then turns to the camera and states that he is outside the Leeds courthouse "awaiting verdicts" in the trial. Moments later, he is accosted by the police and taken into custody for "incitement" and "breach of peace." Another officer states that he is being arrested for "contempt." Robinson, who appeared to be taken by surprise, was then summarily whisked off to prison to serve a 13 month term.
There are a few things which are unsettling in this unfolding, the first of which is whether Robinson had any actual notice of the reporting restriction. The court's gag order is not time stamped, so it is impossible to know whether it was issued before or after Robinson was apprehended. Even if it was actually issued before his arrest, contempt -- unlike violations of statutory law -- requires actual knowledge of the judicial order. While person is "presumed" to know the law, he is not "presumed" to know whatever orders a judge may issue from the bench. The usual procedure in contempt case is as follows:
The likelihood that the gag order issued after Robinson's arrest, by way of post hoc justification, is furthered by the fact that the police were not on the same page as to why he was being detained; "incitement" and "breach of the peace" are not the same as "contempt."
According to one report, moments before he was arrested, the Honourable Judge Marson QC, was observing Robinson from the second storey window of the court building. What appears likely, viewing all the circumstances, is that the two accosted defendants complained to the court, the judge took a look, told his clerk to "draw up" a reporting restriction, while, in the same breath, ordering the bailiffs to arrest Robinson. It would certainly not be the first time English judges acted in such a High and Imperious manner.
The second unsettling thing was the dispatch of Robinson to prison without any hearing whatsoever. The Contempt of Court Act of 1981 is surprisingly quiet about a right to a hearing. Section 3(3) says "The burden of proof of any fact tending to establish a defence afforded by this section to any person lies upon that person." Rather obliquely, that section implies a time and a place to present a defence and that, in turn, implies some type of hearing prior to imposition of penalty.
Luckily, the Crown Prosecution Service, elucidates that there are two types of criminal contempt procedures: a regular procedures and a summary procedure.
The U.K. Independent reported that Robinson had done "this" before and, at the time of his present arrest and incarceration, was on probation for a previous contempt of court. The only difficulty with this waffling excuse for official misconduct is that, whatever "this" is, a hearing is still required. When a person is on probation and when that person commits a new violation of law, he subjects himself to two further consequences: (1) the previously suspended sentence is "automatically" triggered and imposed and (2) he is separately liable for the new offence. In this situation, the offender is entitled to two summary hearings, although in practice they are often dealt with at the same time. But there is no indication that Robinson got either summary hearing. The Independent's "bad-boy-in-school-yard" approach far from making the state's case better made it worse.
The Independent's conflating of the two contempt cases shows what is really at issue here. According to the Independent, Judge Heather Norton handed him a three months imprisonment in May last year but suspended it for 18 months on the condition he would not commit further offences. “This is not about free speech, not about the freedom of the press, nor about legitimate journalism, and not about political correctness,” the judge told Robinson at the time, “It is about justice and ensuring that a trial can be carried out justly and fairly, it’s about being innocent until proven guilty. It is about preserving the integrity of the jury to continue without people being intimidated or being affected by irresponsible and inaccurate ‘reporting’, if that’s what it was."
One has to parse the peculiar language in which all tyrants speak. No despot ever kicked down a door avowing an intent do something bad. Every dictator at all times clothes his exercise of brute power in the fairest of tissues. Indeed, tissues so fair, they can but bring a tear to any man whose heart is not made of stone.
This is about justice! About preserving innocence! About the integrity of the jury to be free from intimidation! Who could possible quarrel? Not I... except what was that bit about or "being affected by irresponsible and innacurate reporting" ?
This is not about free speech, Judge Heather Norton assures us. We abide our fearless and noble tradition of free speech, freedom of the press, and "legitimate reporting" Our heart swelleth with pride.... except, pardon me for asking, who decides what constitutes legitimate reporting?
Enter John Wilkes waving the scurrilous, irresponsible North Briton No. 45.
During the reign of George III, Wilkes published an anti-government rag full of all the muck and scurrile he could dredge up and muster. "The most treacherous, base, selfish, mean, abject, low-lived and dirty fellow, that ever wriggled himself into a secretaryship....." was typical copy. The chief pitiable object of Wilke's poisoned pen was George III's prime minister, the Earl of Bute. Wilkes made Bute the most hated Minister the country had known.
In 1763, peace broke out with the Treaty of Paris ending the Seven Years' War. Sentiment on the outcome was divided. The King counted the treaty a triumph and authored a Crown Speech to Parliament to that effect. However, a substantial segment of the country, including Wilkes, felt that the gains had not been sufficient for the gamble. Obtaining a draft of the speech, in what one supposes was a pre-wiki leak, Wilkes went to town against the treaty,
By the standards of the day, Wilkes had committed seditious libel... he was undermining the state by inciting and arousing sentiments contrary to public peace and order.
There then ensued a series of events that became the historical cornerstones for freedom of the press and freedom from unwarranted searches and seizures -- in the U.S., for the First and Fourth Amendments.
Because Wilkes was also member of Parliament, he at first claimed immunity from prosecution. Under pressure from the Crown, the Commons revoked his immunity. Thereafter, under a "general warrant" Crown agents broke into the printing shop of the Monitor, another anti-government paper published by John Entick, a friend of Wilkes. Wilkes had written anonymously for the Monitor and it appears that Entick's print shop was also used to print some editions of the North Briton. They were certainly two peas in the same pod. The agents seized what they could and smashed up the rest. Wilkes fled to France.
The fiasco dragged on for a number of years. Eventually Wilkes was exonerated and Entick won his suit for trespass against the Crown agents, it being held by the Court of Common Pleas that a general warrant was insufficient license to protect the agents from suit. Henceforth only a specific warrant backed by probable cause for a specific person or place would do.
On returning from France, Wilkes was elected an alderman for the City of London. He used his official position to leak official documents to the press.
It might surprise people to learn that at this time, proceedings in Parliament were secret. The predictable justifications were advanced: secrecy promoted free and unencumbered exchanges of opinion and protected ministers from the wrath of the mob and so forth and so on. A group of "radical" MP's, including Wilkes, felt this was wrong and were determined to let the public know what went on behind closed doors.
The Establishment reacted predictably and sought to summon and hold the errant MPs in contempt. Wilkes used his position to protect the ministers and to stir up demonstrations in favour of freedom of leaks. The impasse lasted several years at the end of which the House of Lords realized that the ban on reporting had seen its day.
Events in the American Colonies followed a parallel path, at times, ahead of the game. In 1733, Peter Zenger was brought to trial for directly criticizing the Crown Governor in his paper the New York Weekly Journal. He was accused of "divers scandalous, virulent, false and seditious reflections." But although the jury refused to convict, the Crown persisted in its efforts to control "seditious" press. Thus when Marylanders heard of Wilkes' travails, they sent him 45 hogsheads of tobacco to assist in his defence. As in England, journalism was raucous, muck-raking and partisan. There was a purely informative aspect -- arrival of ships, goings on in Europe -- but most of it fell into what could by called a political tabloid. Journalists -- often writing under pseudonyms, the era's equivalence of VPN -- were not interested in neutrality or genteel discourse. They wanted to prove a point and to incite passions, the more scandalous the fare, the better.
On that date, Robinson stood outside the Leeds courthouse reporting on the absence of any reporting of the case. It was a rainy morning and virtually no one -- certainly no crowd -- was around. A shaky cell phone video showed Robinson approaching a couple of the defendants as they entered the courthouse, seeking to elicit their reactions to the case. Their not unpredictable reaction was to angrily flip him the bird. One of these defendants turned toward Robinson before being pulled inside by his cohort.
Robinson then turns to the camera and states that he is outside the Leeds courthouse "awaiting verdicts" in the trial. Moments later, he is accosted by the police and taken into custody for "incitement" and "breach of peace." Another officer states that he is being arrested for "contempt." Robinson, who appeared to be taken by surprise, was then summarily whisked off to prison to serve a 13 month term.
Unsettling Questions
There are a few things which are unsettling in this unfolding, the first of which is whether Robinson had any actual notice of the reporting restriction. The court's gag order is not time stamped, so it is impossible to know whether it was issued before or after Robinson was apprehended. Even if it was actually issued before his arrest, contempt -- unlike violations of statutory law -- requires actual knowledge of the judicial order. While person is "presumed" to know the law, he is not "presumed" to know whatever orders a judge may issue from the bench. The usual procedure in contempt case is as follows:
Judge: counsel, if you keep this up I am going to find you in contempt
Counsel: Yes your honour.That certainly did not happen in this case and as near as can be ascertained the "NOTICE TO THE PRESS" does not even appear to have been posted on the courthouse door.
The likelihood that the gag order issued after Robinson's arrest, by way of post hoc justification, is furthered by the fact that the police were not on the same page as to why he was being detained; "incitement" and "breach of the peace" are not the same as "contempt."
According to one report, moments before he was arrested, the Honourable Judge Marson QC, was observing Robinson from the second storey window of the court building. What appears likely, viewing all the circumstances, is that the two accosted defendants complained to the court, the judge took a look, told his clerk to "draw up" a reporting restriction, while, in the same breath, ordering the bailiffs to arrest Robinson. It would certainly not be the first time English judges acted in such a High and Imperious manner.
The second unsettling thing was the dispatch of Robinson to prison without any hearing whatsoever. The Contempt of Court Act of 1981 is surprisingly quiet about a right to a hearing. Section 3(3) says "The burden of proof of any fact tending to establish a defence afforded by this section to any person lies upon that person." Rather obliquely, that section implies a time and a place to present a defence and that, in turn, implies some type of hearing prior to imposition of penalty.
Luckily, the Crown Prosecution Service, elucidates that there are two types of criminal contempt procedures: a regular procedures and a summary procedure.
"Generally, resort to the summary procedure will be justified where there is a need for the court to act decisively, to show that its authority has not been undermined ... A Crown Court judge's power to commit summarily for contempt should be exercised only where the contempt is clear and it is urgent and imperative to act immediately. In the absence of urgency, the matter should be referred to the Attorney General to consider bringing proceedings in the Queen's Bench DivisionBecause Judge Marson's order has, in effect, resulted in a secret trial, it is impossible to ascertain the details of Robinson's detention and sentence further than what has been stated. Because the court chose to impose a gag order it assumed the risk and bears the onus of any inaccuracy in anyone's reporting. But the sure indications are that Robinson was not afforded the minimum due process applicable to summary contempt. While a person can be arrested without notice and detained pending hearing, to be hauled off to prison without notice and hearing is an action in league with the GESTAPO or CHEKA.
"[T]he minimum requirements for a fair hearing where the contempt is dealt with summarily. ... include that the contemnor is told what they are said to have done wrong, understand the defences available, has a reasonable opportunity to make representations and to seek legal advice."
The U.K. Independent reported that Robinson had done "this" before and, at the time of his present arrest and incarceration, was on probation for a previous contempt of court. The only difficulty with this waffling excuse for official misconduct is that, whatever "this" is, a hearing is still required. When a person is on probation and when that person commits a new violation of law, he subjects himself to two further consequences: (1) the previously suspended sentence is "automatically" triggered and imposed and (2) he is separately liable for the new offence. In this situation, the offender is entitled to two summary hearings, although in practice they are often dealt with at the same time. But there is no indication that Robinson got either summary hearing. The Independent's "bad-boy-in-school-yard" approach far from making the state's case better made it worse.
The Political Issue
The Independent's conflating of the two contempt cases shows what is really at issue here. According to the Independent, Judge Heather Norton handed him a three months imprisonment in May last year but suspended it for 18 months on the condition he would not commit further offences. “This is not about free speech, not about the freedom of the press, nor about legitimate journalism, and not about political correctness,” the judge told Robinson at the time, “It is about justice and ensuring that a trial can be carried out justly and fairly, it’s about being innocent until proven guilty. It is about preserving the integrity of the jury to continue without people being intimidated or being affected by irresponsible and inaccurate ‘reporting’, if that’s what it was."
One has to parse the peculiar language in which all tyrants speak. No despot ever kicked down a door avowing an intent do something bad. Every dictator at all times clothes his exercise of brute power in the fairest of tissues. Indeed, tissues so fair, they can but bring a tear to any man whose heart is not made of stone.
This is about justice! About preserving innocence! About the integrity of the jury to be free from intimidation! Who could possible quarrel? Not I... except what was that bit about or "being affected by irresponsible and innacurate reporting" ?
This is not about free speech, Judge Heather Norton assures us. We abide our fearless and noble tradition of free speech, freedom of the press, and "legitimate reporting" Our heart swelleth with pride.... except, pardon me for asking, who decides what constitutes legitimate reporting?
Enter John Wilkes waving the scurrilous, irresponsible North Briton No. 45.
In 1763, peace broke out with the Treaty of Paris ending the Seven Years' War. Sentiment on the outcome was divided. The King counted the treaty a triumph and authored a Crown Speech to Parliament to that effect. However, a substantial segment of the country, including Wilkes, felt that the gains had not been sufficient for the gamble. Obtaining a draft of the speech, in what one supposes was a pre-wiki leak, Wilkes went to town against the treaty,
A despotic minister [i..e Bute ] will always endeavour to dazzle the prince with high flown ideas of the prerogative and honour of the crown. I wish as much any man in the kingdom to see the honour of the crown maintained in a manner truly becoming Royalty. I lament to see it sunk even to prostitution.Wilkes no doubt felt he had come but toe to the line. George III was adamant that he had crossed it. It was seditious libel to directly impugn the majesty of the Sovereign, which the last sentence rather less than obliquely did, despite the article's dubious disclaimer that the Crown's Speech to Parliament was always considered "the Speech of the Minister."
By the standards of the day, Wilkes had committed seditious libel... he was undermining the state by inciting and arousing sentiments contrary to public peace and order.
There then ensued a series of events that became the historical cornerstones for freedom of the press and freedom from unwarranted searches and seizures -- in the U.S., for the First and Fourth Amendments.
Because Wilkes was also member of Parliament, he at first claimed immunity from prosecution. Under pressure from the Crown, the Commons revoked his immunity. Thereafter, under a "general warrant" Crown agents broke into the printing shop of the Monitor, another anti-government paper published by John Entick, a friend of Wilkes. Wilkes had written anonymously for the Monitor and it appears that Entick's print shop was also used to print some editions of the North Briton. They were certainly two peas in the same pod. The agents seized what they could and smashed up the rest. Wilkes fled to France.
The fiasco dragged on for a number of years. Eventually Wilkes was exonerated and Entick won his suit for trespass against the Crown agents, it being held by the Court of Common Pleas that a general warrant was insufficient license to protect the agents from suit. Henceforth only a specific warrant backed by probable cause for a specific person or place would do.
On returning from France, Wilkes was elected an alderman for the City of London. He used his official position to leak official documents to the press.
It might surprise people to learn that at this time, proceedings in Parliament were secret. The predictable justifications were advanced: secrecy promoted free and unencumbered exchanges of opinion and protected ministers from the wrath of the mob and so forth and so on. A group of "radical" MP's, including Wilkes, felt this was wrong and were determined to let the public know what went on behind closed doors.
The Establishment reacted predictably and sought to summon and hold the errant MPs in contempt. Wilkes used his position to protect the ministers and to stir up demonstrations in favour of freedom of leaks. The impasse lasted several years at the end of which the House of Lords realized that the ban on reporting had seen its day.
Events in the American Colonies followed a parallel path, at times, ahead of the game. In 1733, Peter Zenger was brought to trial for directly criticizing the Crown Governor in his paper the New York Weekly Journal. He was accused of "divers scandalous, virulent, false and seditious reflections." But although the jury refused to convict, the Crown persisted in its efforts to control "seditious" press. Thus when Marylanders heard of Wilkes' travails, they sent him 45 hogsheads of tobacco to assist in his defence. As in England, journalism was raucous, muck-raking and partisan. There was a purely informative aspect -- arrival of ships, goings on in Europe -- but most of it fell into what could by called a political tabloid. Journalists -- often writing under pseudonyms, the era's equivalence of VPN -- were not interested in neutrality or genteel discourse. They wanted to prove a point and to incite passions, the more scandalous the fare, the better.
The government's attitude was hostile. In 1671, Governor William Berkeley of Virginia wrote: "I thank God, there are no free schools nor printing and I hope we shall not have, these hundred years, for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both." The British government once told the governors of Massachusetts, "Great inconvenience may arise by the liberty of printing."
Libel. Technically, libel and defamation are statements that impugn and impute the character or motives of a person. Unfortunately for the victim, truth is always a defence on a charge of libel. "You called me a thief!" "But you are a thief, let me prove it..." The "victim" could come out worse than before.
To work around this inconvenience, government came up with the concept of seditious libel -- any conduct or speech deemed by authorities as having a tendency to undermine the established order. In England, speech was seditious if it brought the Crown or any branch of government into "hatred or contempt" or if it promoted discontent or hostility between citizens. Truth was not a defence.
In the United States, once sedition and insurrection against the Crown had proved successful, government went back to its old habits. In 1798, President Adams pushed through what is known as the Alien and Sedition Acts, section (2) of the latter making it a criminal offence to,
"write, print, utter or publish, or ... knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing ... against the government of the United States, or either house of the Congress of the United States, or the President of the United States, ... or to excite against them, ... the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, ... or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government,"The law was repealed in 1801, but revived again during the First World War. Seditious Libel remained on the books in England until 2009. In both countries the repressive artifice remains available under other guises. Most currently, the campaign against "fake news," "foreign trolls," "unauthorized leaks," incitement and/or Holocaust Denial, are all forms of seditious libel, the aim of which is simply to repress opinions and polemics which the government deems "inconvenient."
The American legal historian, Leonard W. Levy states that seditious libel "has always been an accordion-like concept, expandable or contractible at the whim of judges."
Personages like Senator Feinstein in the United States, former Justice Minister Heiko Maas in Germany and the Honourable Judges Marson and Norton always invoke the Highest Objectives in pursuit of repression. Thus, Feinstein once questioned whether the First Amendment "covered" printing manuals "on how to make a bomb." One might as well wonder how much chemistry one is free to teach. In seeking to free the net of so-called hate speech, Maas brilliantly stated that "free speech ends where the criminal law begins." And where exactly, one might wonder, is that? What the state wishes to repress it first criminalizes. Surely Goebbels understood that. Thus too, according to Judge Norton silencing Robinson "is about preserving the integrity of the jury to continue without people being intimidated or being affected by irresponsible and inaccurate ‘reporting’."
The statement is worth pondering for the way in which it mixes High Objective with insinuations of criminal conduct.
No one has accused Robinson of jury tampering. He has not suborned perjury, procured witnesses or bribed jurors. Robinson did nothing to undermine the integrity of the jury to hold and continue deliberations. No one has a "free speech" right to bribe jurors but that issue was simply not on the table.
Note how Norton switched pods in her verbal shuffle. She did not state, "without jurors being intimidated;" she switched to talking about people being intimidated. Jurors are people but not all people are jurors. Surely Norton, a trained jurist, understood that.
The switch was crafty. What Norton meant was that it was necessary for the jury to deliberate without the public being affected by "irresponsible" reporting. She confused "jury" with "public" and "intimidated" with "affected" simply to muddy up what she was about. However, the whole point of a free press, of public comment on public matters is to affect people on the issue at hand.
This right should not be evaded by labelling the effect an "intimidation." Short of assaults or specific threats people in public have to put up with the rough and tumble of life. No one should expect to turn the entire public space into his or her personal safe space. To ask as much is to turn society into a prison in which everyone is required to keep to his small space.
The proposition Norton really advanced was that government has a right to conduct its business without the public being affected by "irresponsible" controversies. Although Judge Marson has not enlightened us with his/her thoughts, one assumes that the gag order was motivated by the same High Objectives. The concept of free speech held by the likes of Norton, Marson, Maas and Feinstein is that of an embalmed corpse. Speech which does not inconvenience, which does not provoke, which does not pinch toes, which does not hurt, is free speech that is not worth a damn. James Madison, the chief architect of the American Bill of Rights, understood this perfectly. In Federalist Paper No. 10 he wrote,
"The latent causes of faction are ... sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. "
But,
"Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency."The core, anti-democratic and despotic nature of seditious libel laws is not they they seek to shield the majesty of government from insult. It lies in the speciously advanced, high minded purpose of preventing hostility between citizens or exciting their passions -- to abolish air in order to prevent flames.
Guardians of public discourse have a notion of free speech that is decorous, restrained, sorta academic, like Spinoza, Luther, Ralph Waldo Emerson or David Brooks of the New York Times... fit for print and fit for the Publice Broadcasting System's "two (acceptable) sides" of any issue. But if these guardians actually read Spinoza or Luther -- if they even knew something about them over and above that they existed and were "great" -- they would realize that no decorous, restrained, academic discourse is worth a damn if it doesn't blow the roof off the house. That is what "great books" do.
Make no mistake, Robinson is no Luther and no Socrates. He is not even a Mencken or an Assange. But he is a gadfly. He is provoking and calling into question the British Establishment's "mulit-ethnic" and "multi-cultural" concept of society. It is pointless to argue that his views are racist, that they offend some or even a majority of people, or that they "call into the question the fundamentals of our civil society." So what? Who decreed what those fundamentals are and who decreed that they cannot be questioned? The fundamental of liberal democracy is that anything can be questioned including its own fundamentals. Anything less is neither liberal nor free.
Robinson might be styled a political paparazzi. His reporting is designed to bait, provoke and make a point. No doubt his "points" are likely -- if they are not designed -- to emotionally affect and hurt the feelings of the foreign born or Muslim segments of British society. He is clearly arguing against their civic interests. But again, one has to ask, so what? People who think politics ought to be some sort of badminton game on manicured lawns think as much only because their position of privilege insulates them from being truly affected by the myriad of decisions made at Westminster. Politics is warfare by other means.
There are of course limits. Actual, present incitement of an imminent harm -- such as urging a mob to lynch a person or to burn down an asylum centre -- is properly made criminal. But, in the United States at least, words and conduct which merely have a tendency to adversely affect, or to "potentially affect," someone or some status quo are not considered "incitement." (Brandenburg v. Ohio, (1969) 395 U.S. 444 Stringing connective "causalities" is the game of sophists and tyrants.
Similarly, there is a point at which undue publicity can affect the impartiality of a trial. But again, in the United States at least, the effect has to be continuous and overwhelming. (Sheppard v. Maxwell, (1966) 384 U.S. 333.) In addition, any prior restraint on publicity must take into account free speech interests.
And not only "free speech" but the right as well to a public trial. (U.S. Const. Sixth Amendment.) For a public trial is one which the public is free to comment on. The two rights are inseverable. A court can impose a gag order on attorneys and even on witnesses. It can, in extreme cases sequester the jury. It can take measures to protect the visible identity of a witness. But it can never, ever, prohibit the public from attending the proceedings, assembling outside the courthouse or commenting on or protesting the case.
The Contempt of Court Act of 1981, is the real scandal here -- a legal accordion to suppress whatever a judge decides to label as a "substantial risk of prejudice." Judges Marson and Norton were not about justice but at suppressing "seditious" speech. In this instance, Britain needs to take a lesson from her erstwhile colonies who, in this respect, stood for the better half of English traditions.
© 2018 Woodchip Gazette
To whom it may concern: no member of the Gazette is a British subject and the Gazette's servers are not within any U.K. jurisdiction.
See:
http://www.history.org/foundation/journal/spring03/journalism.cfm
http://www.history.org/foundation/journal/summer03/wilkes.cfm
https://thehistoryofparliament.wordpress.com/2013/04/23/the-treaty-of-paris-john-wilkes-and-north-briton-number-45/
Update 1 August 2018
An appellate judge, quashed the trial court's judgement and ordered Robinson released. "In his written judgement, Lord Burnett said: "We are satisfied that the finding of contempt made in Leeds following a fundamentally flawed process, in what we recognise were difficult and unusual circumstances, cannot stand."
That's what we said.
https://www.bbc.com/news/uk-england-leeds-45029755
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