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?
As is often the case, I totally agree Carl.
Particularly, I am also slightly confused that Liberty should take this one up. It is their “pet subject” but that, again, makes the Wilders case seem a little inconsistent.
If I was being flippant, I would suggest that perhaps they only have a certain quota of right wing opinion they have to support – or for which they uphold the right to be voiced.
Could it possibly be that they could see that public support was so overwhelmingly against Wilders that it would be a PR disaster to fly the Free Speech flag in that instance?
When do Liberty not agree with Free Speech? I would be genuinely interested in hearing an answer to that.
If a political party or a newspaper decided that it would be damaging to show support for a cause consistent with its ideological position, this would be regarded as sensible pragmatism rather than hypocrisy and so perhaps the question should be why Liberty should be held to a higher standard.
I would be worried if Liberty said that the exclusion of Geert Wilders was lawful but there is absolutely no evidence that it ever took such a stance.
In many ways, the judgment in the Gaunt case was a victory for Liberty if not for Gaunt because a decision which had originally been purported to be made on the basis of the use of the word ‘Nazi’ and, even more dubiously,
‘health Nazi’, changed into a decision which was about the fact that these words were shouted without any context, a hugely significant distinction.
.-= James Medhurst´s last blog ..Spending public money =-.
Pragmatism is all very well, but is it more important than the core (nay “only”?) principal for which the organisation that employs it, exists? That’s where I’m struggling on this one.
I believe you are correct in saying that there’s no evidence that Liberty supported the exclusion of Geert Wilders. There is, however, evidence that they sat back and watched it happen. Inaction is a choice – and therefore an action if and of itself. Just a thought, that’s all.
James, I would appreciate it if you could explain the “hugely significant” distinction between the offensive use of the word “Nazi” and the offensive use of the word “Nazi” out of context. Are you simply agreeing that the word “Nazi” would be acceptable had the subject of the offensive word been in the employ of Hitler – directly, or indirectly, or of an associated or derived organisation. I would say that you would be correct – but in this case, I imagine it’s unlikely to have been regarded as offensive by the recipient (and, probably, most others who were offended) and therefore we would not be in this state of affairs. The distinction would therefore be “irrelevant” rather than “hugely significant”.
The bottom line is, Gaunt brought the case and argued that the Ofcom judgement hindered his freedom of expression. The court said that it did not. I don’t see how this could be a victory for Gaunt, unless he simultaneously placed a large wager on himself losing the case.
Of course, broadcasters must be able to express themselves freely, but we must also consider the responsibilities that go with those rights and of the rights of others. The balance is always important and we cannot allow those in positions of power to trample all over those who are unable to adequately defend themselves.
As I say, it could be seen as a victory for Liberty not for Gaunt. The original decision appeared to suggest that if someone is called a “health Nazi”, an “eco-Nazi” or whatever, this will be always be offensive, regardless of the context. If taken as a precedent, this would have a chilling effect and would presumably prevent, for example, Vince Cable comparing Gordon Brown to Stalin and, indeed, Geert Wilders comparing the Koran to Mein Kampf. It is important that the court did not create this precedent given the frequency with which such comparisons are made in casual speech.
I find the use of the phrase “positions of power” interesting. In the English common law, before the ECHR, the main justification of free speech was to allow open criticism of the state by its subjects. This is often forgotten. It is not primarily to protect the right of elected politicians to criticise sections of society. I note that Carl’s original post describes the victim in this case as an “ordinary person” but he is actually an elected official making decisions about the right of people to be foster parents. If he prevented gay people from becoming foster parents, would we be allowed to call him a Nazi then?
.-= James Medhurst´s last blog ..Spending public money =-.
Each case should be judged on its merits.
I do think, however, that people should think twice before bandying around words such as “Nazi” and “Stalin”. As much as they may have become common currency in some quarters, the world should never forget what these names stood for and the offence they can cause when applied to those that do not represent their ideals – or, indeed, were a victim (directly or indirectly) of their horrors.
If the official in question had banned gay people from fostering, wrong as it would undoubtedly be, it wouldn’t in itself make him a Nazi. Neither would a fondness for marching or a penchant for taking extended holidays in France. All three, along with a National Socialist membership card and a signed copy of Mein Kampf, however…
Whatever else, Gaunt is in a rather more influential position than his victim – and with no electorate to hold him to account, so the role of the regulators and the law have an even bigger responsibility in this case. The man has a history of spouting tripe that would make Jeremy Clarkson blush – and that’s his role in life – but he needs to learn that some things are just not acceptable. A total and complete right to free speech is ultimately a right to trample over someone else’s rights, which is why balance is so crucial.
I don’t understand your approach, James. The court upheld Ofcom’s original decision. It didn’t quash it to any extent. There was no victory here either for Jon Gaunt or for Liberty. It was a victory for Ofcom.
I don’t prefer the ECHR approach to the traditional English residual freedom approach to free speech, but I’m not sure they differ very much. In any case, freedom of expression is I think much more complex than simply allowing people to say what they like. It depends on context. And it’s not all about politics or criticism of officials. For instance I don’t think we should ban heated political arguments. I do think the Wigmore Hall should be able to throw people out if they insist on holding such an argument during a concert – in fact, freedom of artistic expression depends on their doing so.
In the same way, I don’t think it’s about the abstract question of if and when it’s okay to call someone a Nazi. It’s about more than that. You could almost ask this: was that Jon Gaunt interview more an example of Jon Gaunt’s exercising his own right to free speech? Or more an example of his denying it to Michael Stark? I think it was more the latter.
To clarify, I think that the decision of Ofcom was correctly upheld and Talksport was probably right to sack Gaunt. However, reading some of the media from the time, there was an awful lot of focus on the word “Nazi” which, from reading the judgment, appears to be neither here nor there. Perhaps this was simply misreporting but the clarification is welcome.
By the way, I have never been invited to be a guest on Talksport – has my free speech been denied? I do not mean this entirely frivolously – there is an important issue about the lack of representation of some viewpoints in the media but this is rarely seen as a free speech issue. Maybe it should be.
.-= James Medhurst´s last blog ..Spending public money =-.
I’m not sure it’s right that the court thought use of the word “Nazi” was neither here nor there. They did think the first use of it may have had some justification; subsequent uses of it certainly formed part of Ofcom’s finding of breach which they upheld.
I think some misreporting of this over the last two days has resulted from the claims of Jon Gaunt and some of his supporters (such as Kelvin MacKenzie on Radio 4 yesterday) who, without distinguishing between the various times he said it and “sexing up” what the court said, have simply claimed the court found Gaunt’s use of the word Nazi “justified”.
I think your last point’s an interesting one, James. Perhaps it should be seen as a free speech issue; and my whole approach is based on the idea that free speech is a much richer liberty than a simple “my show, my rules” approach favoured by Jon Gaunt.
I think freedom of speech is not just something that exists naturally and perfectly in all purity until regulators limit it. I think expression is more free because media organisations now pay more attention to listeners’ views and broadcast them, and because of the internet. What broadcasters do in presenting discussion and debate I think can widen, protect or limit free speech just as much as what regulators do.
I’m not saying you’ve got a human right to be on TalkSport, of course. But if they do invite you on, then stop you answering their unfair barrage of beside-the-point shouted questions so that you’re bullied on to the back foot, then cut you off, I think it’s your freedom of speech that’s been limited by them, not theirs that’s been limited by anyone else.