February 27th, 2021


How to say 'privacy' in U.S. and UK English

Noah Feldman

By Noah Feldman Bloomberg View

Published April 28, 2016

That other Supreme Court.

Americans think they have a G0D-given right -- or least a constitutional one -- to the details of celebrity sex lives. Yet disclosures of private information can be sanctioned by law after the fact, as Gawker learned recently when Hulk Hogan recently won a huge verdict against it for publishing his sex tape.

There's another way to deal with undesirable speech. In the United Kingdom, the Supreme Court heard arguments last week in the case of a major celebrity who has used the courts to block publication of an article alleging that his spouse was involved in a threesome outside their well-publicized marriage. The British way shows impressive respect for privacy. At the same time, the Internet has made it seem obsolete because the celebrity's name can be found online after a few Google searches.

The difference in approaches between the U.S. and the UK has historical origins that help explain the birth and original meaning of the First Amendment.

The idea that a court can prohibit the press from saying something is known to British and American lawyers as "prior restraint." Prior restraint is a form of censorship, but censorship wasn't always seen as bad. Under England's Licensing Act of 1662, no one was allowed to publish anything without getting permission from the Worshipful Company of Stationers, which had a monopoly on printing and a royal license. Permission from the Stationers' Company is the origin of modern copyright.

In the late 17th century, the licensing scheme broke down, and Parliament declined to renew the act. By the late 18th century, William Blackstone, the great English legal writer, could say that "the liberty of the press consists in laying no previous restraints upon publications."

Yet Blackstone did not say that speech couldn't be punished. He added that while "every free man has an undoubted right to lay what sentiments he pleases before the public," a person could still be held accountable after the fact. "If he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity," Blackstone wrote.

This allowed, for example, for libel laws, which at the time could lead to both civil and criminal penalties. When the Florida court gave Hulk Hogan damages, it was relying implicitly on this distinction between prior restraint and subsequent damages drawn by Blackstone nearly 250 years ago.

The divergence between Britain and America began with the First Amendment. One school of thought, advanced by the North Carolina Federalist James Iredell, held that the right to freedom of the press was no more than a constitutionalization of Blackstone's argument against prior restraint. But another view, championed by James Madison and other Democratic-Republicans, held that the First Amendment must prohibit not only prior restraint but also criminal penalties for political speech. The debate raged after John Adams signed the Sedition Act of 1798 and used it to punish newspaper publishers during the 1800 election season; neither side won at the time.

Modern interpretation of the First Amendment has tended to follow Madison more than Iredell. Not only does the Constitution now protect newsworthy speech after the fact, it also is now interpreted to prohibit prior restraints almost absolutely in the U.S. The Pentagon Papers case, decided by the Supreme Court in 1971, marks the high point of that rule, as the court lifted lower court rulings that would have blocked publication of the classified documents.

As a result, today it's almost impossible to get a court order that prohibits a publication in advance. To get a U.S. court to issue such an injunction, you'd pretty much have to argue that the paper was going to publish a recipe for making a hydrogen bomb.

Not so in the UK, where there's no single document amounting to a written constitution and so no precise equivalent to the First Amendment. Courts there have long issued prior injunctions to protect individuals' privacy, deeming private information not to be protected.

The result is that today, U.S. and UK law diverge on two different fronts. U.S. law defines free speech to include more information about the private lives of public individuals than does British law. And U.S. law virtually bars prior restraints, which UK law allows in some circumstances.

The old saw has it that Britain and the U.S. are two countries divided by a common language. That's true when it comes to free speech as well. Both countries are among the freest in the world when it comes to speech rights.

But their conceptions of what counts as free speech -- and how to protect it -- are distinctively different.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."