By Suneal Bedi & William C. Marra
Wednesday, January 25, 2012
Imagine if New England Patriots quarterback Tom Brady were accused of hurling a racist remark at an opponent during an NFL game. Public condemnation would be swift, but it would be unthinkable — not to mention unconstitutional — for prosecutors to bring criminal charges against the Patriots’ signal-caller.
Not so in Britain, where John Terry — the captain of both the English national soccer team and Chelsea, one of the nation’s most powerful clubs — faces trial on February 1 for allegedly racially slurring an opponent during a recent soccer match.
Terry is no stranger to controversy. In 2010, he was removed as captain of the national team after allegations surfaced that he’d had an affair with a teammate’s girlfriend; he was reinstated as captain a year later. England’s soccer authorities have yet to punish Terry for his latest alleged transgression, as they await the outcome of his legal battle.
If the accusations of racism are true, then the England captain should be swiftly and thoroughly censured. But his punishment should come from soccer’s governing authorities and the court of public opinion, not the criminal courts. Prosecuting Terry or anyone else for hateful speech is misguided and counterproductive.
Terry’s criminal prosecution highlights the gulf between American and British understandings of free speech, and the disconcerting extent to which the land of John Milton and John Stuart Mill is comfortable limiting its citizens’ freedom of expression. Although this is apparently the first time a British soccer player has been prosecuted for racially insensitive remarks made on the pitch, the principle is well established that Britons may be subject to criminal sanctions for taboo speech.
The charges against Terry stem from an October match between Chelsea and Queens Park Rangers. Terry, who is white, is accused of calling QPR’s black central defender, Anton Ferdinand, a “black c***.” Terry does not deny using the phrase but challenges the context in which it was said. His defense is that Ferdinand asked him whether he had used the slur, and Terry simply replied, “No, I didn’t call you a black c***.”
Prosecutors in England charged Terry with a “racially aggravated public order offense,” in violation of the 1998 Crime and Disorder Act. The act authorizes jail time, though Terry faces only a $4,000 fine.
Tragically, accusations of racism are not new in European soccer. Fans sometimes jeer black opponents with monkey noises. Only eight days before Terry allegedly slurred Ferdinand, Liverpool striker Luis Suarez was accused of slurring a black opponent in another English Premier League match. Suarez’s fate has been the inverse of Terry’s — he does not face criminal prosecution, but has been suspended eight matches and fined about $63,000 by the League.
Bigotry exists in America too, but we do not criminally sanction hate speech. We have a faith in the “marketplace of ideas,” the belief that truth is most likely to emerge through the free exchange of ideas and not through censorship. Americans tend to believe that the best way to combat hateful speech like Terry’s alleged slur is to expose it to the antiseptic of public debate, and we are skeptical of empowering the government to label certain ideas “right” or “wrong.”
Unfortunately, we are an outlier in our understanding of the freedom of speech. Whereas we view the freedom of speech as an individual right that should rarely give way to competing social goals such as equality and dignity, Britain, like much of the West, is more comfortable giving stock to those competing interests.
This difference is reflected in contrasting textual guarantees of the speech right. The First Amendment categorically states that “Congress shall make no law . . . abridging the freedom of speech.” By contrast, Britain’s Human Rights Act of 1998 (which codifies the European Convention on Human Rights) declares that “everyone has the right to freedom of expression,” but quickly adds that the freedom may be restricted as “necessary in a democratic society,” for example to prevent disorder or protect health and morals.
These different conceptions of speech matter. The Terry prosecution is just the latest example. Consider, for example, virulent anti-war protests. Last March, the U.S. Supreme Court dismissed a tort lawsuit brought against the supremely bigoted Westboro Baptist Church for staging an anti-gay protest at the funeral of an American serviceman. Upholding the group’s right to speak, Chief Justice John Roberts wrote that although speech can “inflict great pain,” “we cannot react to that pain by punishing the speaker.”
A British court, faced with a similar set of facts, reached the opposite conclusion last February. The court found that the criminal prosecution of protesters who shouted slogans like “burn in hell” and “baby killers” at a parade of British soldiers did not conflict with the Human Rights Act’s free expression guarantee. The court held that the prosecution was a proportionate response to the threat posed by the speech. “[T]he focus on minority rights should not result in overlooking the rights of the majority,” the court said.
The trouble with Britain’s approach is that it empowers the government to pick “right” and “wrong” ideas, and nudges us down a slippery slope where more and more thought may be censored. It enlarges government, and chills speech that straddles the border between permitted and proscribed speech. “Thus,” law professor Charles Fried has written of speech codes, “the holders of noxious ideas are suppressed and the rest of the community is impressed and intimidated by this display of political might.”
The different role of American and British courts is also critical. America has a system of judicial review and judicial supremacy, meaning federal courts may strike down laws they believe are unconstitutional, and the executive and legislative branches must follow the courts’ judgments. By contrast Britain has Parliamentary supremacy, meaning courts may not strike down laws or otherwise place meaningful limits on Parliament’s legislative powers. In other words, American courts are strong and receive deference from the political branches, whereas British courts are weak and must defer to Parliament.
Thus British courts cannot strike down laws they believe are inconsistent with the “freedom of expression” protected by the Human Rights Act. The courts must still enforce the offending laws; at most, they may issue an advisory “declaration of incompatibility” that Parliament is free to ignore. But if John Terry were prosecuted in America, a court could (and likely would) strike down the law, and the charges would be dismissed.
By giving courts, rather than the legislature, the final word on the freedom of speech, America provides more robust structural protections for the right. This is because on balance, independent courts insulated from the political process are more likely than legislatures to protect minority rights like the freedom to deliver unpopular speech. It is unsurprising that Britain, which leaves the scope of the right in the hands of Parliament and the political process, has a less vigorous freedom of expression.
This has salience for the Republican presidential primary. Newt Gingrich has proposed scrapping our system of judicial supremacy and stripping the Supreme Court of its status as final arbiter of the Constitution. Gingrich would not adopt the British model and make the legislature supreme; instead, he would make the three branches co-equal interpreters of the Constitution, and he would empower the executive and legislative branches to ignore court decisions with which they disagree.
Even under Gingrich’s plan, courts would retain the authority to dismiss prosecutions they believe are inconsistent with the First Amendment. But in many other instances, by empowering the executive to ignore “wrong” court opinions, Gingrich’s plan would likely give the political branches final say on whether individuals enjoy speech rights.
For example, if Congress and the executive prohibited a minority political group (think the Westboro Baptist Church) from holding a rally or staging a parade, there is little courts could do to preserve that group’s right to hold the rally. The group will probably be silenced — and who is to say our own credos will not be next in the crosshairs?
The proper allocation of power between unelected judges and elected politicians is a difficult question that admits of no easy answer. But whatever the value of Gingrich’s proposal for other areas of the law, one important downside is that it threatens to undermine the vitality of our speech rights. If the prosecution of John Terry troubles you, so too should proposals to strip the Supreme Court of its final word on matters of free speech.
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