Julie Burchill, free speech and the Lynne Featherstone clause

by Carl Gardner on January 15, 2013

Yesterday the Observer decided to deleted the online version of an article by Julie Burchill printed in its edition last Sunday, together with readers’ comments on it, most of which were critical. It also apologised for publishing the piece. But you can read it on Toby Young’s Telegraph blog, where it’s since been republished.

In my view this decision is scandalous. Julie Burchill’s piece was insulting and no doubt offensive to many people. But pure offence is not a good reason to suppress writing, whether the offended are members of a religious or ideological group, or any other segment of society. Burchill’s piece does not advocate violence or irretrievably harm anyone, for instance by invading his or her privacy. It’s worrying that pressure has made the Observer buckle in this way even though quite a few critics of Julie Burchill, in their comments under her article, expressed the hope that the Observer would not delete it (wanting others to be able to see how offensive it was). You’ll have to take my word for that; I can’t link you to any of those comments, as they’ve also been deleted. You don’t have to agree with Julie Burchill or with the many critics who posted strong reactions under her piece to see that expunging both was wrong.

By the way, I think Toby Young is wrong to see this incident as a warning about Lord Justice Leveson’s proposals:

if professionally offended, Left wing lobby groups can silence a journalist for being politically incorrect before the Leveson proposals have been implemented, just imagine how influential they’ll be after a new independent regulator has been set up, particularly if it has the power to take complaints from third parties and a remit to enforce “the spirit of equalities legislation”.

The point is that this happened without Leveson being implemented, and with no regulatory intervention whatever. In reality, proper implementation of Leveson would help ensure proper distinctions are made between harmful journalistic activity on the one hand (such as spying, stalking and revealing information that ought to be private) and opinion that merely causes offence on the other. It’d help ensure decisions on apologies are made according to rules laid down by journalists, rather than the rule of clamour, and that content is suppressed only in a very small minority of cases where this is truly necessary to protect individual rights.

Where Toby Young is right, though, is in saying that

What makes this decision particularly sinister is that it was taken less than 48 hours after a government minister attacked the Observer for publishing the article in question.

International development minister Lynne Featherstone had called for Julie Burchill to be “sacked”.

Legally what’s interesting about this is that Leveson LJ recommended (see page 315) that the law should place an explicit duty on ministers to uphold the freedom of the press. Both draft bills published so far, Hacked Off’s Media Freedom and Regulatory Standards Bill and the Labour opposition’s Press Freedom and Trust Bill, would impose such a duty. Clause 1 of Hacked Off’s bill says:

(1) Ministers of the Crown and public officials with responsibility for matters relating to the media must uphold the freedom of the press and its independence from parliament and the executive.

(2) Ministers of the Crown and such public officials must have regard to–

(a) the importance of the freedom and independence of the media;
(b) the right of the media to receive and impart information without interference by public authorities;
(c) the need to secure the independence of the media.

 (3) Interference with the activities of the media by Ministers of the Crown and public officials shall be unlawful unless it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy.

Provisions like this certainly wouldn’t amount to a British First Amendment, since they’d do nothing to prevent Parliament limiting the freedom of the press. And it’s not easy to imagine them being enforced in any effective way. Although clause 1(3) seems to me justiciable – a decision or act that breached clause 1(3) could be judicially reviewed – it offers nothing not already provided by the Human Rights Act 1998 in relation to freedom of expression, except that it could be invoked by a wider class of claimants (the Human Rights Act is only available if you yourself are at least a potential “victim” of any restriction on free speech, whereas this clause could be relied on by other interested persons).

In a case like this, it’s difficult to see how Lynne Featherstone’s remarks could lead to any actual remedy since nothing happened directly as a result of what she said. Even if her words breached clause 1(1) or (3), all anyone could hope to achieve would be a declaration from a court to that effect. And the courts are slow to give purely declaratory relief where it serves no real purpose.

For these reasons, you could argue that this is practically pointless legislation, of the kind criticised by former Parliamentary Counsel Daniel Greenberg – who drafted Hacked Off’s bill – in his excellent book Laying Down The Law. Its main purpose is to reassure the press and public

I’m not sure I agree that a “Lynne Featherstone clause” really is pointless, though. Being advised that doing something would breach a legal duty, and the risk of being accused of doing so, does tend to constrain and check ministerial behaviour – and I’ve no doubt a clause like this would have such an effect. People already appeal to the ministerial code wherever possible when criticising ministers’ conduct. It’d be just that bit more embarrassing if they could appeal to the law instead. And as I’ve said, clause 1(3) seems justiciable in the same way as a Convention right under the Human Rights Act, so ministers would face at least some risk of being found by a court to have interfered with the media. This is one reason why Hacked Off’s draft bill is better than Labour’s – which looks almost purely aspirational in this regard.

Thanks, then, to Lynne Featherstone for giving us another reason why Parliament should legislate to implement the Leveson recommendations.

{ 19 comments… read them below or add one }

1 Scrapper Duncan January 15, 2013 at 08:44

Am wondering whether Julie Burchill might have requested its removal? Has she apologised or expressed any opinion on the matter?

2 Carl Gardner January 15, 2013 at 08:59

I doubt it! If she had, I don’t think it’d make sense for her to agree to the Telegraph republication.

3 Robyn January 15, 2013 at 09:01

Rather disappointed in the Telegraph’s decision to republish Burchill’s piece. The majority of the comments to the post appear to be just as transphobic as the original article. Rather than discussing the impact of the Observer pulling the rant, commenters are deciding on the validity of the article.

4 Anonymous January 15, 2013 at 13:53

Interesting point. Why is the Observer’s decision so scandalous? It’s not censorship, it’s an exercise of editorial discretion. If they had originally made the decision (which in my view would have been correct) not to publish the piece, they could not have been criticised: newspapers make decisions like that every day. So why is it so bad for them to unpublish it, on the basis that on reflection they don’t want their paper to be associated with those views? They’re not preventing anyone from republishing it, after all. Or is your objection that the historical record shouldn’t be tampered with except where absolutely necessary?

5 James Medhurst January 15, 2013 at 14:50

I think that this is a deeply problematic issue. Newspapers make all sorts of editorial decisions all of the time for all sorts of reasons. For example, they have made a conscious decision not to give a platform to radical Islam, both because it is contradictory to their political stances and because it would cause widespread offence to women, Jewish people and all right-thinking members of society.

In my view, this approach is unobjectionable, even admirable. The problem is where do you draw the line? With a free press, the only possible answer is that it must be left to the press to draw it itself.

Sometimes newspapers want to correct things that have unintended consequences. For example, it is common for online editions to correct factual errors and sometimes even to remove details if, for example, a person who has been reported as being arrested is subsequently charged and the newpaper wants to avoid contempt.

It seems to me permissible for a newspaper to change its mind about an editorial decision that it regrets making, after the event, if for example there is a public outcry that it was not expecting and that makes it feel uncomfortable that it has stepped further outside of its editorial line than it had anticipated at the time. I agree that ministers like Lynne Featherstone must remain silent but others are allowed to comment and newspapers are allowed to listen to them.

The problem here is that censorship and self-censorship are not the same, or even particularly similar. In Isaiah Berlin’s dichotomy, the right not to be censored is a negative right while the right to have one’s voice heard is a positive right. I do not agree with Isaiah Berlin’s view that negative rights are more important than positive rights but I do agree that they are easier to implement and present far fewer difficult practical problems than enforcing positive rights.

There probably is now a need to address the very real and pressing problem of self-censorship. However, before this is possible, the issue requires detailed consideration and a sound philosophical framework underpinning it. It cannot just be bandied around as a knee-jerk reaction to a specific event. Otherwise, there is a danger that we find ourselves giving a platform to radical Islamic clerics.

6 Richard Gadsden January 15, 2013 at 16:14

I don’t see why a minister can’t express an opinion in a private capacity. Featherstone did not express that opinion as public policy, or as the policy of the government, but as an individual.

7 Matt Wardman January 15, 2013 at 17:23

Good to see your view , Carl.

>Interesting point. Why is the Observer’s decision so scandalous?

History should not be “vanished” because people are cross; it should be “archived”. It’s childsplay to keep it there so that links are maintained referring to it, but still slug it in the search engines.

The Obs now have to decide what are their criteria for withdrawing articles, and how many people of which opinions have to complain before they do it.

To me, the original NS piece was fine; the reaction to the “Brazilian” analogy was fine in the comments and massively OTT over-entitled bullying on Twitter, the rant in the Observer was probably a bad idea, but deleting it was even worse.

I’d say that the Telegraph should have left the comments turned off.

It’s going to be a bumper year in the victim-narrative world championship.

8 Carl Gardner January 16, 2013 at 11:24

Anon (comment 4),

I see your point of course – it’s up to the Observer what they publish. But I think deleting a piece on the web after it’s already been published and after it’s already appeared in print is less an “editorial” decision, more a decision to self-censor.

I think publishing firms should be free to decide what books they turn down – but pulping a book after publication because some people object to it is quite another matter. Theatres should be free to decide what plays to put on – but closing a play that’s opened just because people have taken offence is a very different matter indeed.

I also think the decision to suppress readers’ comments was wrong.

9 Carl Gardner January 16, 2013 at 11:38

James,

You make good points – including about “platforming” extremists. To be honest, I’m fairly relaxed about giving extremists a platform, I think. I don’t see any reason to let people into this country if they’re likely to advocate violence, and I think it’s fine for people to criticise a university, say, which offers a platform to someone like that (as it was fine to criticise the Observer). But I like extreme views being exposed in major media outlets – I think it tends to demonstrate how daft they are. Nick Griffin found that out.

I’m not sure about the need for a philosophical framework. Of course we should all try to be reasonably consistent – but I think you know when you see a decision that’s just wrong, and amounts to culpable self-censorship. This strikes me as one of those occasions.

10 Carl Gardner January 16, 2013 at 11:48

Richard,

I don’t think I agree. I don’t think a minister making an open statement on a matter of public interest is in any sense private (I’d feel very differently if this was, say, an e-mail or text Lynne Featherstone had sent to a friend which had been leaked against her wishes).

If ministers could get away with making “private” public statements, then they could do all sorts of things – slag off foreign leaders, rudely abuse judges – and not be properly accountable. I think Lynne Featherstone was wrong to use her influence and platform as a minister in the way she did.

11 Carl Gardner January 16, 2013 at 11:53

Matt,

Good to see you here! I agree almost completely – but I think the Telegraph’s right to allow comments on the Julie Burchill piece. I understand why people are offended by it, and think it’s right for them to have their say. One of the issues I have with the Observer is that they suppressed comments critical of Julie Burchill which people were also, I think, entitled to see published (as long as they complied with the Guardian website’s normal policies of course, as I’m sure most of them did).

12 Matt Wardman January 16, 2013 at 12:41

I think there’s a big issue around criticism and post-editing, because the Observer has now given a positive incentive for bullying.

I’m reminded of a case last year where Pennyred tried to self-censor after some bullying on Facebook when she had written about the Cenotaph Flag-Swinger.

Archive here:
http://www.scribd.com/doc/60479866/Defend-Charlie-Gilmour-From-Laurie-Penny-Cc

I’m not particularly worried about Lynne Featherstone; I think she’s just shot from the hip and is now looking silly. It would be different if it had any impact, though.

13 Nigel Scott January 16, 2013 at 13:04

Julie Burchill is a ‘controversialist’. She writes to provoke a reaction. She succeeded in this case. What she wrote was ‘hate crime’ aimed at a particular minority. If she had made similar comments about Jewish people, Black people, or women (for example) it is doubtful whether the Observer, or any mainstream newspaper would have published them. Even if she did not directly advocate violence against a particular group, her kind of language legitimises discrimination. Free speech means freedom of expression and the freedom to debate ideas and views even if they are outside the mainstream. It is not the same as freedom to insult and abuse. Most editors know this and exercise discretion. It is a pity that editors continue to give Julie Burchill a platform to express her hate. Those who defend freedom of speech without constraint including the freedom to abuse and victimise should look around the world and see what happens in societies where this is routine. Lynne Featherstone was right and politicians should have the right to comment as individuals. That is how we find out what they are made of. Later this month is Holocaust Memorial Day. This is when we remember the victims of unchecked hate crime.

14 Christine Burns January 16, 2013 at 13:32

Forgive me if anyone has already noted this (I couldn’t see that anyone had done so)…

The Observer has NOT unpublished Julie Burchill’s article. It was published in the print edition as well as online in Comment is Free.

What has happened is that the Observer has made it much harder for people to understand that article in historical context, however, as the online version would have remained easy to find in perpetuity … along with the contemporaneous comments of readers deploring it. To that extent I think all our interests have been damaged.

Personally, I think the place where the Observer first went wrong was to publish the article. As another commenter has already said, such a decision is not a freedom of speech one. Newspapers make editorial decisions about what to publish every hour of every day. It’s not a free speech issue as Burchill (a freelancer) could have taken her article elsewhere or, ultimately, self-published on a blog … as I’m usually obliged to do (being a lot less powerful than she is).

The Observer then showed that two wrongs don’t make a right, by deleting the online copy and immediately feeding the greedy mouths of those ready to cry censorship. How can it be censorship if the article is still out there in print? You can read it in a library. It will be in the British Library’s archives forever. No, the only people actually censored were the hundreds who turned out and showed that, on this occasion, the quality of the writing below the line exceeded the quality of that above.

15 Carl Gardner January 16, 2013 at 14:11

Christine,

I think Julie Burchill was censored – just as much as a novelist is censored if the paperback edition of his or her book is withdrawn from sale because of offence. The fact that hardback copies remain on some people’s shelves doesn’t change that.

Apart from that I think we agree. I agree that others were censored, and that had the Observer just turned Julie Burchill’s article down, there’d be no free speech issue worth worrying about. But that’s not what happened of course.

16 Kevin McNamara January 22, 2013 at 05:10

Carl Gardner,

I simply don’t agree that Lynne Featherstone used her influence at all, unless you can show where her intervention convinced the Observer to remove Burchill’s article *or* fire her?

Also, your second point does not quite work. You are comparing apples and oranges. As far as I am aware, ministers are at liberty to express their opinion where there is no government line on the issue, as Maria Miller has done in the past with regards to assisted dying. I cannot think of a single MP who would abuse judges or slag off leaders as that *would* quite rightly call the government into disrepute, which commenting on Burchill’s hate speech has not done. I’ll add that what Featherstone has done did not constitute abuse. She politely said that Burchill’s views were disgusting.

My own opinion is that there has been been far too much said about Burchill’s right to be a hatemonger and not nearly enough to the right of anyone to respond critically. Any response to Burchill has been screeched at as censorship.

17 Richard Gadsden January 22, 2013 at 12:38

Perhaps I should have said “in a personal capacity” rather than a private one.

She wasn’t speaking as a minister with the power of the state, but as a person, with only the power to convince people or not.

It’s like signing the Page 3 petition – which seeks to persuade, by argument, the editor of the Sun to cease to publish Page 3, without threatening in any way to compel the Sun to do so.

I think it would be wrong to deny individuals the right to state their own opinions just because they are a minister, or to assume that any minister – especially a liberal one – expressing an opinion is also threatening to use state power to enforce their opinion.

Viz. “Julie Burchill should be sacked” is not the same thing as “the Government should use the power of the law to prevent Julie Burchill from being employed”.

Obviously, if they said something that brought the government or the nation into disrepute (like slagging off a foreign leader or a judge) then that’s different, but I think there’s a wide margin between only saying things that are government policy and not saying things that are contradictory to government policy.

18 Kevin McNamara January 22, 2013 at 23:27

Absolutely, Richard.

19 Matt Wardman March 23, 2013 at 21:31

I find it fun how people who are doing anything “in a personal capacity”, feel the need to mention (ie trade off) their official positions to give a smear of cedibility to their “personal” views.

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