British Lord Critiques the First Amendment as “Unbalanced”   

Lord Anthony Lester says the First Amendment is no longer seen as the beacon for free speech that it once was in the rest of the world. Fri., August 9, 2013.

The First Amendment, once a trailblazer for free speech in the world, tilts too far in favor of the press, Britain's Lord Anthony Lester told a gathering of American journalism and communication educators in Washington Thursday.

"We in the rest of the world simply cannot understand how you can have a system in which free speech trumps personal privacy. So, we regard your libel law, as prompted by the Supreme Court, as unbalanced," Lester, a free speech expert and human rights lawyer, said at the 2013 conference of the Association for Education in Journalism and Mass Communication (AEJMC).

Lester said the Supreme Court rulings made it possible for figures such as a football coach and a belly dancer to be considered public figures, and therefore have "the almost impossible burden of proving actual malice and reckless disregard of truth."

He both critiqued and celebrated the First Amendment. But he said it is now being surpassed by other countries, such as Britain, with laws that are doing a better job of balancing freedom and responsibility. He suggested one reason was that the U.S. codified free speech in the Constitution, which is interpreted by the Supreme Court through case law, rather than through legislation.

"Judgments of the Supreme Court have lost persuasive influence in Europe and beyond during recent decades," he said. "Its judgments have made libel law all but useless to victims of seriously harmful libels and it denied constitution protection to the victims of gross media intrusion on private lives. They made it impossible for the United States to rebalance their libel laws as we have done."

At the AEJMC conference, Lord Anthony Lester criticizes and celebrates the First Amendment on Aug. 8, 2013. Credit: Bethany Swain.

AEJMC President Kyu Ho Youm, a free speech advocate and professor at the University of Oregon, said he invited Lester to challenge attendees to "develop a critical 'reverse perspective' on our often U.S.-centric understanding of freedom of the press."

AEJMC is holding its annual conference in Washington, D.C., this weekend, bringing together an estimated 2,400 journalism and mass communication educators, researchers and professionals.

Freedom of speech is a major theme at this year's conference and part of AEJMC's mission. Lester's speech, "Two Cheers for the First Amendment," helped kick off the event.

In addition to being a member of the House of Lords, Lord Lester has led a crusade to change the British libel laws. The Trinity College, Cambridge and Harvard Law School graduate often used American legal principles when arguing past free expression cases before English and European courts.

Three years ago, Lester drafted the original bill that has become Britain's new Defamation Act, which will be in full force by the end of this year. The act is designed to achieve a balance between the rights of British journalists and the rights of private citizens. It would hard for American legislators to match what Britain has done, he said, because the Supreme Court has issued so many judgments in libel law cases.

"Of course there can't be a unitary theory of freedom of speech or an organizing principle to answer all free speech questions, but I hope that the way in which our government and parliament sought to reform our civil law might interest journalists, jurists, scholars, media law reformers, even though they can't do anything about it because of your Supreme Court's rulings," Lester said.

At the end of his speech, Lester called out his audience. "Surely somebody can defend the First Amendment against this outrageous attack by this ignorant European, jetlagged traveler." While a few audience members asked questions, no one voiced disagreement.

In an interview, Ted Glasser, a Stanford professor and past president of the AEJMC who introduced Lester, said, "It's refreshing to hear an outsider's critique and comment on our system of public expression." He said he hoped attendees would walk away from this speech with "a deeper appreciation for the relationship between freedom of speech and responsibility."