Speak No Evil

by David Kopel, Paul Gallant, & Joanne Eisen

Chronicles, Feb. 2002. pp. 45-46

On January 11, 2001s 40-year-old Terence Hunter was arrested by the New York Police Department for writing a letter to Staten Island borough president Guy Molinari, criticizing him for closing a community center in a black neighborhood. According to the New York Times, Hunter, a Staten Island resident, was charged with "aggravated harassment" because he called the center's closing a "high-tech lynching" and his letter to Molinari included photographs of blacks being lynched. Hunter was released the next day when the Staten Island district attorney's office announced it was refusing to prosecute the case. Molinari admitted that, although he found Hunter's letter offensive, there was no threat involved.

An entirely different fate befell 69- year-old Englishman Robert Birchall in May 2000. Birchall was convicted of "the public offense of using racially threatening or abusive words" and fined £100. The magistrate told Birchall that the fine would have been much higher if he had had a "substantial income." Birchall, a retired academic, had allegedly told Mungai Mbaya (a British citizen born in Kenya ) to "go back to your country" during a dispute in the Cambridge Central Library. It seems that Mbaya had two newspapers in his possession at one time--contrary to an unwritten library rule--and Birchall had been looking for a copy of one of them.

Birchall, while admitting he was angry at the time, denied using the objectionable phrase, lamenting, "It's political correctness gone mad. I'm not a racist and I wasn't being racist. I was brought up with people from mixed races and have been around them all my life." No matter. Birchall was convicted of violating race discrimination laws recently enacted in Great Britain .

As the contrasting Staten Island and Cambridge cases illustrate, the United States has not yet followed Great Britain's lead in turning offensive speech into a crime. In the United States, saying "go back to your country" would probably result in trouble for a university professor or for an employee of most corporations, but it wouldn't even come close to a criminal offense.

The greatest threat to free speech and civil liberty in Europe may not, however, be national governments infected with extreme political correctness, but the European Union. On March 6, 2001, the European Court of Justice provided the British people with a vision of things to come, when it rendered a ruling in Connolly v.Commission that, in essence, resurrected the legal monstrosity of seditious libel.

Mr. Connolly had been an E.U. staff official, working on monetary policy. During a three-month unpaid leave from his position, he published a book entitled The Rotten Heart of Europe : The Dirty War for Europe 's Money. After Connolly had initially returned to his E.U. post, the book was serialized in the Times of London , and Connolly gave interviews as part of the publicity campaign for the book, during which he remarked that:

"My central thesis is that the ERM [Exchange Rate Mechanism] and EMU [European Monetary Union] are not only inefficient but also undemocratic: a danger not only to our wealth but to our freedoms and ultimately, our peace. The villains of the story--some more culpable than others--are bureaucrats and self-aggrandizing politicians. The ERM is a mechanism for subordinating the economic welfare, democratic rights and national freedom of citizens of the European countries to the will of political and bureaucratic elites whose power-lust, cynicism and delusions underlie the actions of the vast majority of those who now strive to create a European superstate. The ERM has been their chosen instrument, and they have used it cleverly."

In retaliation, Connolly was fired from his E.U. job and his pension was taken away for violating regulations governing E.U. employee conduct, which forbid employees to publish material without permission.

The unanimous four-judge court acknowledged that Connolly had free-expression rights and that the European Union's rule that permission be obtained before employees publish anything had to be interpreted in light of freedom of expression. 

But the right of freedom of expression, the court asserted, may only be exercised in a manner consistent with "the protection of the rights of others." Connolly's book had interfered with the "rights" of the European Union itself, the court explained, because the book "damaged the institution's image and reputation."

It is important to note what is not in the European Court of Justice's opinion. American courts have allowed some limits on job-related political speech by government employees. But in the United States, the restrictions must be content neutral. For example, the FBI may forbid employees to write books that disclose FBI secrets, but the FBI may not grant or withhold publication permission depending on whether the employee applauds or criticizes the FBI. The Connollydecision, in contrast, was justified on the very grounds that Connolly's content made the European Union look bad.

The E.U. court did not attempt to show that Connolly's book was false or misleading. That Connolly had written a truthful exposé of misconduct at the European Union was seen by the court as making his offense all the worse.

Although the Connollycase involved enforcement of an employment regulation against an E.U. employee, nothing in the opinion limits the court's rationale to this narrow context. Freedom of expression, the opinion argues, may be stifled if necessary for "the protection of the rights of others." And the "rights of others" include the "right" of the European Union to prevent damage to its own "image and reputation." The principle would certainly sustain a national government's law forbidding criticism of the European Union. Indeed, since the European Court of Justice can override national laws in order to enforce E.U. laws, the Connollyprinciple could conceivably be used to invalidate a nation's constitutional protection of free speech--at least where criticism of the European Union or other governments is involved.

In short, Connollytakes a major step toward reinstating the offense of seditious libel--that is, the crime of criticizing the government so as to injure its reputation.

Historically, the truth of the statement was no defense against the charge of seditious libel. Indeed, truthfulness harmed the government all the more. As Lord Holt put it in the 1704 English case Rex v. Tuchin: "nothing can be worse to any government than to endeavor to produce animosities as to the management of it . . .no government can be safe unless it is punished. "

Before Connolly, seditious libel had been purged from the Anglo-American legal tradition. In England, an important step in this direction was Fox's Libel Act of 1792, which allowed juries to render general verdicts of acquittal in seditious libel prosecutions. The European Union , though, recognizes no right to a jury trial. Cases are decided by professional government employees, not by one's peers.

In the American colonies, there were 70 prosecutions and 50 convictions for seditious libel from 1760 to 1776. As Leonard Levy details in Origins of the Bill of Rights, it does not appear that the First Amendment was intended to outlaw falsehoods that injured the government's reputation. Thus, seditious libel prosecutions were still allowed in the case of false statements. The famous 1735 jury acquittal of New York printer John Peter Zenger had proved that, at least in some cases, American juries could and would acquit based on the truthfulness of the publication in question--even if the juries had to violate the judge's instructions.

The 1798 Sedition Act, passed by a Federalist Congress, specifically allowed truth as a defense. But the Sedition Act was vigorously used to persecute Republicans, which led the Republicans to adopt a more liberal standard. They argued that the truth of political matters was often subject to honest dispute and that the courts were given too much leeway in determining whether a publication fell within the Sedition Act's prohibition of "false, scandalous, and malicious" writings. 

On January 7, 1800, James Madison delivered his Report on the Alien and Sedition Acts--a detailed argument in favor of the Virginia and Kentucky Resolutions, which had interposed the state governments of Kentucky and Virginia to protect their citizens from the unconstitutional acts of the federal government. Madison argued that the narrow view of the First Amendment (Blackstone's position in his Commentaries that freedom of the press consisted only in freedom from prior restraint) was meaningless if a person could be punished after publication. The specter of potential punishment would make writers afraid and, thus, have the same effect as prior restraint: preventing the publication from being made in the first place.

More fundamentally, Madison explained, "The people, not the government, possess the absolute sovereignty" --unlike in England. The very nature of deciding whether Congress and the president deserved to be reelected required deciding whether elected officials deserved to be held in "contempt or disrepute" or deserved "the hatred of the people of the United States"--yet the Sedition Act forbade creating such sentiments.

As a practical matter, if the Sedition Acts had been in effect before the American Revolution, "might not the United States have been languishing at this day, under the infirmities of a sickly confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?"

Thomas Jefferson's landslide victory in the "Revolution of 1800" ratified this view, and the hated Sedition Act was allowed to expire ignominiously. The new Republican view of freedom of speech dominated interpretations of the First Amendment. At the state level, seditious libel prosecutions began to vanish as well. Seditious libel also began to wither in England, although more gradually than in America.

The end of seditious libel did not completely end the prosecution of people for criticizing the government--especially in the misnamed "Progressive" Era and during World War I. Even then, however, prosecutors had to argue that the defendant's speech would lead to law-breaking, either immediately or in a more attenuated fashion. Merely harming the government's image was no longer an offense.

The European Union touts itself as a progressive government. But as the Connollycase illustrates, its vision of "progress" is the elimination of traditional individual rights that might interfere with the lust for power of bureaucratic elites.

Dave Kopel is the research director, and Paul Gallant and Joanne Eisen are research associates, at the Independence Institute.