by Carl Gardner on July 13, 2010
On the day the High Court here has delivered a blow against the Foxification of our media, in the United States Fox TV (together with the big networks, CBS, ABC and NBC among others) has had a genuine legal victory. The Federal Court of Appeals, 2nd Circuit, has ruled that the policy of the FCC (the American equivalent of Ofcom) on indecent words in programmes is “unconstitutionally vague” and so breaches the 1st Amendment to the Constitution. Here’s a news report about the case from the New York Times. It’s likely now to go to the US Supreme Court.
It’s interesting as a contrast to Jon Gaunt’s case – he was subjected to no sanctions whatever by Ofcom, whereas in today’s American case, the FCC had power to impose massive fines on broadcasters, in theory at least for merely “fleeting expletives” uttered by people other than presenters.
It’s interesting in terms of constitutional rights, too, because the vagueness doctrine corresponds to the requirement under the European Convention on Human Rights that interferences with rights must be prescribed by law or in accordance with law - meaning among other things that citizens must be able to predict with reasonable confidence how the restrictions apply, so that they can regulate their conduct. That was the basis of the House of Lords finding in favour of Debbie Purdy in the context of the right to respect for private life.
The Court of Appeals here felt that the FCC’s policy was too broad and too arbitrarily applied:
By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.
It’ll be interesting to see if the Supreme Court upholds this judgment. Even if it does, it will not prevent the FCC from framing a new policy, perhaps spelling out a list of words that can be “presumed forbidden” subject to exceptions.
by Carl Gardner on July 13, 2010
I welcome today’s judgment today this judicial review, in which the radio talk show host Jon Gaunt failed in his challenge to Ofcom’s finding that an interview he gave in late 2008 breached the broadcasting code. And I’ve written about it at Comment is Free’s Liberty Central:
The real question is not whether it’s OK to call someone a Nazi. I find that pretty outrageous unless you’re actually dealing with someone whose views resemble Hitler’s, but context matters, and I wouldn’t want broadcasters to feel it could never be justified. The real question is whether or not we back effective media regulation. Because a cowed regulator, whose criticisms of the media are routinely vilified and subject to legal challenge may end up as toothless as the Press Complaints Commission.
Jon Gaunt and Kelvin MacKenzie have been giving interviews today arguing that the judgment is in some sense a victory for Jon Gaunt – but of course it’s not. It’s true he won the argument that his broadcast attracted a high level of protection in freedom of expression. But the court did not, as Gaunt has said today on Radio Five Live (from 1 hour 8 mins 30), find his use of the word “Nazi” justified (it just said it may be that his first use of the word had some justification), it did not “dismiss” Ofcom’s findings at all, and it did not find in Ofcom’s favour on a merely narrow, technical point. What the court actually said (see paragraph 50 of the judgment) was that
we accept Mr Anderson’s submission that the [Ofcom finding] constituted no material interference with the claimant’s freedom of expression at all.
This is not the free speech cause célèbre Jon Gaunt makes it out to be. What this is really about is whether British broadcasting should be coarsened by anything-goes presenters routinely insulting and shouting down their guests – subject only to the fear of legal action from the rich – or whether some independent body should be able to uphold ordinary people’s complaints when they do.
I’m surprised Liberty thought this a good case for them to support. In contrast, when the Dutch MP Geert Wilders was unlawfully excluded from the country in early 2009 because of his views on Islam, Liberty said nothing. Why the difference of approach?
by Carl Gardner on July 9, 2010
This week the French National Assembly has finally been debating the government’s proposed legislation banning the wearing of the “full face veil” – the niqab, burka or any other piece of clothing that hides the face. I wrote in January about the plans of Jean-François Copé and of President Nicolas Sarkozy. Well, in May the Assembly passed the resolution Sarkozy envisaged as the “first stage”. Now it’s at the legislative stage. Here’s the text of the government’s projet de loi, and here’s a surprisingly good Google translation of it. Crucially, it aims at a total ban on the wearing the veil in public.
The legislation is bound to pass when deputés vote on it next Wednesday, especially since most of the socialist group won’t be voting. I’m afraid that’s a ridiculous position for them to take. If they think the ban is too wide to be constitutional or if, more importantly still, they think it’s wrong, then they should oppose it – explaining why they want a more limited ban, if they do, or why they’d prefer not to legislate. I think it does them no credit at all to seek credit for not supporting this measure while also avoiding populist anger for being against it. If, on the other hand, they’re happy for it to go through, they should support it. I’d have liked their leader Martine Aubry to have shown braver leadership on this. Even allowing socialist members a free vote – publicly admitting that the left is divided on this – would have been more honest, and better.
The surprise, though, is that Jean-François Copé, the effective leader of the anti-burka cause, has now said he wants the Conseil Constitutionnel to rule on the legislation before it comes into force. The Conseil isn’t a supreme court, but a sort of grand panel of supposedly “wise” men (well, there is a woman among them), Valéry Giscard d’Estaing and Jacques Chirac being among the members, who can give rulings on the constitutionality of legislation. Presumably Copé thinks the Conseil will uphold the measure; we’ll see.
In any event, as Gilles Devers pointed out in February in his blog Actualités du Droit, the European Court of Human Rights earlier this year made a ruling that strongly suggests the French legislation would breach the article 9 Convention right to freedom of religion, in the case of Arslan v Turkey. The judgment is only in French at the moment.
Arslan was about members of a particular Muslim sect who wear special robes and turbans, some of whom were prosecuted by the Turkish authorities for wearing these outfits in public, including in court when initially arraigned. Turkey’s case was that its strongly secularist laws are needed in order to prevent Turkish society from pressure from those who’d like to abandon secularism and democracy. But it lost. Here’s my quick and dirty translation of the key conclusions:
49. The Court recalls its finding that the applicants were sanctioned because of the clothing they wore in public places open to everyone, such as roads or public squares. This case does not therefore concern the regulation of the wearing of religious symbols in public institutions, in which context the importance of neutrality as regards belief may outweigh the free exercise of the right to manifest one’s religion. It follows that the jurisprudence of the Court emphasizing the particular importance of the role of national decision-makers in the context of banning the wearing of religious symbols in public schools (see, inter alia, Leyla Şahin supra, § 109) does not apply in this case.
50. The Court finally notes that it is not apparent from the record that the way the applicants demonstrated their belief in a specific place did, or was likely to, constitute a threat to public order or to exert pressure on others. Indeed, the applicants at the beginning of the period of the commission of the offences under the relevant legislation, gathered outside a mosque at the place in question, for the sole purpose of participating in a religious ceremony.
51. As to the contention of the Government alleging possible proselytizing by the applicants, the Court observes that nothing suggests that the applicants tried to exert undue pressure on passers-by in the public streets and squares in a desire to promote their religious beliefs (see, mutatis mutandis, Kokkinakis v. Greece, May 25, 1993, § 48, Series A No. 260-A). …
52. Accordingly, the Court finds that here the necessity of the restriction in question is not convincingly established. In conclusion, in all the circumstances of this case, the Court considers that the infringement of the applicants’ right to freedom to manifest their belief was not based on adequate grounds under Article 9 of the Convention. Accordingly, their convictions violated Article 9 of the Convention.
Could the French legislation possibly survive scrutiny in Strasbourg? I doubt it.
There are arguments available to France that weren’t available to Turkey. For a start, the veil raises issues of sex equality and avoiding pressure on girls that did not arise in Arslan. Second, covering the face is a more socially extreme practice than merely wearing identifiable religious clothing. But in the absence of any attempt to pressurise anyone else to cover her face or to evangelise, I doubt this ban can be upheld in current social conditions. I think the European Court would be likely to permit a total ban only if the wearing of the burka or niqab becomes a much stronger movement than it is now, threatening order and democracy or seriously affecting women’s and girls’ choices.
by Carl Gardner on July 9, 2010
Another day, another retreat by the coalition from a bad policy proposal. After Nick Clegg’s vision of light on 55%, now the government has taken a step back on rape anonymity, too. This is what justice minister Crispin Blunt said during yesterday’s debate in the Commons (columns 557-558):
Much has been made in the past of the importance of open justice and the free reporting of criminal trials as key elements of maintaining public confidence in the criminal justice system. We support that view. There is, however, another important reason of principle for distinguishing between the reporting of trials and the reporting of allegations before the point of charge. In the case of the latter, we are dealing with allegations that have not been subject to a full range of investigation …
When there is an allegation before the point of charge, there may have been some degree of investigation into the allegation, but there will have been no formal assertion on the part of the state that anybody has a case to answer. Those points provide grounds to inhibit reporting that are not present at the trial stage. Therefore, having carefully reviewed the extensive background, having taken account of the fact that nobody should be appearing in a criminal trial unless the prosecuting authorities have assessed all the available evidence including any exculpatory unused material, and prosecutors having applied the other provisions of the code for Crown prosecutors and decided to bring criminal charges, the Government are minded to strengthen anonymity up to the point of charge.
So the government now wants pre-charge anonymity only: defendants’ names will be published when it comes to trial. He also conceded the force of one of the main arguments against anonymity by offering to look at research and possible exceptions from anonymity where this would frustrate police investigations.
This isn’t good enough. I’m not persuaded there should be any change in this area. But if there is, it should apply across the board, on principle, to all criminal defendants. At least, though, the government has retreated from the inexplicably bad policy it originally wanted to foist on us in spite of its never having been so much as mentioned during the election campaign.
Well done to Caroline Flint and others, who have pressurised them into doing so.
by Carl Gardner on July 5, 2010
I’m delighted that Nick Clegg has thought better of the proposal, initially agreed by the coalition, that Parliament should not be dissolved unless a majority of 55% votes for dissolution. This is what he said in his statement to the Commons today:
First, we are introducing legislation to fix parliamentary terms. The date of the next General Election will be 7 May 2015. This is a hugely significant constitutional innovation. It is simply not right that General Elections can be called according to a Prime Minister’s whims. So, this Prime Minister will be the first Prime Minister to give up that right.
I know that when the coalition agreement was published there was some concern at these proposals. We have listened carefully to those, and I can announce today how we will proceed, in a Bill that will be introduced before the summer recess:
First – traditional powers of no confidence will be put into law, and a vote of no confidence will still require only a simple majority. Second – if, after a vote of no confidence, a Government cannot be formed for 14 days, Parliament will be dissolved and a General Election will be held. Let me be clear: these steps will strengthen parliament’s power over the executive. Third – there will be an additional power for parliament to vote for an early and immediate dissolution. We have decided that a majority of two thirds will be needed to carry the vote, as opposed to the 55% first suggested, as is the case in the Scottish Parliament. These changes will make it impossible for any government to force a dissolution for its own purposes.
These proposals should make it absolutely clear to the House that votes of no confidence and votes for early dissolution are entirely separate. And that we are putting in place safeguards against a lame duck government being left in limbo if the House passes a vote of no confidence but does not vote for early dissolution.
I’m against fixed-term Parliaments. Most people understand the idea as meaning simply that we should remove the Prime Minister’s unilateral right to ask for a dissolution of Parliament – but that is only a right to ask, not to get a dissolution from the Queen, and the argument that the right has been or is likely to be abused is in my view pretty thin. Wanting fixed-term Parliaments in this commonly understood weak form is a sort of constitutional tidy-mindedness. No more.
But even if you support fixed-term Parliaments in this sense, there were good reasons to object to the original proposal.
First, to require a 55% vote to dissolve Parliament rather than a simple majority would have been to legislate for a stronger form of fixed-term Parliaments than many people had ever even considered – a big constitutional change to make in the absence of any meaningful public debate, and one that even many supporters of fixed term Parliaments were uncomfortable with. To most people apart from committed “Unlock Democracy” nerds, it just seems wrong that a minority (46%) of MPs should be able to force all MPs to remain in their jobs when a majority (54%) wants to face the electorate.
Worse, the original 55% threshold was exquisitely calculated to favour the narrow partisan interests of the coalition parties. It would deny the opposition the right to force an election on the coalition even if it lost its majority. And, uniquely, it would enable one party, the Conservatives, a unilateral right to deny an election if every other party wanted one. Most cynically of all, it would enable the coalition to trigger a dissolution whenever it wanted to – which is not objectionable in itself but which would have meant the government’s unilateral right to ask for a dissolution would not be abolished at all, but actually strengthened into a right to obtain one.
So I’m pleased Nick Clegg has seen constitutional sense. It may seem odd that I welcome the change from a 55% threshold to a 66% threshold, since that’s in a sense a stronger form of fixed-term provision. I do for two reasons. First, at least 66% is not calibrated self-servingly. Under this proposal, the government would be at no special advantage in relation to obtaining a dissolution, which at least would deliver what fixed-term Parliaments are normally thought to be for.
Secondly and more important though is the key concession that there should be a dissolution and an election if, 14 days after a vote of no confidence in the government, no alternative government is formed. This ability of a determined majority to force an election (by refusing to form a government and by voting down any would-be minority government) is an essential constitutional safeguard, and reflects similar safety valves in the Scotland Act 1998 and in the German constitution.
Clegg’s new proposals are still worse than what we currently have: it is not clear who should govern during the 14 days following a no-confidence vote, who should govern during any subsequent election campaign and who should govern following a general election if there is a hung Parliament and a period of negotiations as there was this year. These are the type of questions you raise if you tinker in a half-baked manner with a working constitution, and we need answers to them. But at least the Deputy Prime Minister is no longer trying to force through the appalling “55%” wheeze.
by Carl Gardner on July 1, 2010
Yesterday the Supreme Court gave judgment in this case, ruling that the article 2 Convention right to life does not apply automatically to all members of the British armed forces deployed anywhere abroad; and that the death of a soldier does not automatically require an article 2 compliant Middleton style inquest. It’s a very welcome judgment indeed.
I say that not so much because I personally agree with the outcome (though I wrote last year that I think the Court of Appeal’s ruling ran contrary to the House of Lords’ judgment in Al Skeini). I say it because the entire argument about whether a soldier automatically has the right to life was academic and irrelevant to the case. Collins J at first instance should never have opined on it. Arguably the Defence Secretary should never have appealed that judgment – I saw no special danger in the initial ruling – although media coverage blowing Collins J’s remarks out of proportion probably panicked ministers into thinking they must have his musings rubbished on appeal if they could.
What’s certain is that the Court of Appeal should not have ruled on the matter in the way it did. In my view a ruling that British (and other European) forces have the right to life under the ECHR even in combat situations abroad is one that only the European Court of Human Rights in Strasbourg can sensibly make. If a British court has to do so because it is necessary in order to decide a case, then it may be right to do so, for instance in order to provide reasoning for the ECtHR to consider and if need be criticise. But it was quite wrong for the courts to hear extensive argument on this where the point was completely hypothetical.
As I wrote last year, the Court of Appeal’s judgment was
a badly-reasoned, wrong appeal ruling on a purely hypothetical legal point which has never actually arisen. Nothing could be more Dickensian. This is an unjustified, wrong-headed judicial frolic, and I hope the Lords puts the genie back in its box. The question whether troops are entitled to human rights protection in battle should be settled when a real case arises, and preferably in Strasbourg.
I’m glad the genie is now bottled. Joshua Rozenberg agrees with me, though I’d blame the Supreme Court, which I think has now done the right thing, less than I’d blame the courts below.
Incidentally, Lady Hale’s judgment seems to me slightly strange, as I think Joshua Rozenberg implies it seems to him. I see her point that ultimately the Court’s ruling on the “jurisdictional” issue can be seen as obiter (in other words, not necessary to its decision and so not binding on lower courts). But I don’t think it follows that it did not reverse the Court of Appeal’s judgment on the point, or allow the appeal. The other Justices seemed to think they were doing just that, and surely they must be right. Otherwise, what did Lady Hale think she was doing?
