PRESS FREEDOM AND THE LAW

New Zealand Listener, Volume 16, Issue 393, 3 January 1947, Page 12

PRESS FREEDOM AND THE LAW

Transatlantic Contrasts

SOME interesting and important differences between the conceptions

of freedom of the press and the laws of libel existing in Great

Britain and the U.S.A. were discussed recently in a radio talk given

by

ALISTAIR

COOKE

BBC correspondent in New York, Here is a

condensation of what he said:

SHOULD like to go into what Americans mean by a free press, for on these fundamental things we do not always mean the same things at the same time. Of course the American doctrine of freedom of the press comes down from our joint inheritance of English common law and it was written specially into the Constitution as a fundamental guarantee of American life. The guarantee is repeated in the separate constitutions of each State, and the freedom to print what you like is almost absolute, on the samé legal understanding as in Britain: namely, that you take the responsibility to be hauled into court if anything you write or publish is judged by a court

to be obscene or libellous or defamatory. . There are probably oddities of tradition here and there, but the main freedom is guaranteed in law in much the same way in both countries, and it is the freedom to write and print your own opinions without any police suppression, and, above all, the right in theory and in practice to tell the Government to go to perdition. Backgrounds on the Front Page This, then, is the common tradition. This is what Americans and Britons both mean first of all about freedom of the press. But from this point on, we begin to notice profound differences in practice that baffle the Englishman in America, and the American in Britain.

It does look to a stranger, for instance, es if the main domestic function of "mewspapermen over here were to go around sleuthing for culprits. It looks to an Englishman as if the press had little respect for the privacy of persons. In a way, that’s true. When a private person becomes a public figure his life becomes an open bodk. I am not thinking so much of the American passion for private lives-though frankly there’s nothing peculiarly American about that. But I am thinking of the almost completely unshackled freedom of Americans to find out and write about the background of its public men. Now here is a crucial difference. And it turns, I think, on the different application of the

English and American laws of libel. In theory, they are much the same. In practice, in Britain the benefit of any doubt is generally in favour of the person being libelled. In America, the overwhelming benefit is‘in favour of the person writing the alleged libel. It has been said that'the English libel law is so tricky that the risk of publication is seldom worth while. In America, the libel law is so favourable to the writer that the risk of suing is seldom worth while. In America, for instance, there is no law restraining the press from commenting on a case before it is brought to trial or during the trial. That is one specific difference. But aside from any differences in law, what I want to make clear is the wide freedom of the press in examining the career and character of anybody that interests it. In America, a lawyer would be very happy if the literal truth of a libel could be established. In Britain a journalist could still lose his case even if he proved he was writing the truth, For there is more concern in Britain ovet whether a statement does or does not tend to bring ridicule on the victim or injures his standing with his fellow men. The law makes the same point in America, but is hardly ever tested on these grounds. A. distinguished English journalist once told me that it would cost an English magazine its capital in libel actions if Britain were to print

biographical sketches like the famous "profiles" of the New Yorker magazine -a feature and a title that, since the New Yorker started them, back in the twenties, have gone into the language. It is not the difference between being allowed to be scurrilous and not being allowed. The New Yorker's profiles, for instance, are never that. They are superlatively written portraits of the life, manners, career and motives of anybody the magazine is interested in. It may be a politician, or a zoologist, a writer, or a crooner, or a collector of antiques. Almost any living American would be proud to be profiled by the New Yorker. Some victims have howled for vengeance, and found none in the law. I doubt if anywhere else in the world you could read a picture of a man’s life and character so devastating as the profiles that the New Yorker printed about Alexander Woolcott or Walter Winchell. I doubt whether an English dramatic critic could write about an ex-wife as an American dramatic critic once did: "When I married Miss So-and-So, she gave her profession as that of actress. I saw nothing in last night’s performance to justify the description." That is a pretty mild sentence to read in America. But I am told that in Britain the actress would need to do no more than collect a few witnesses who would declare that she was an actress, and she would have a surefire chance of collecting damages. Freedom and Mr. Mencken This freedom, uninhibited by a delicate law, or by the fear that anybody would care to appeal to that law, has lately been lavishly demonstrated by H. L. Mencken, the irreverent bad boy of Baltimore, the old magazine editor who in the nineteen-twenties was possibly the most powerful single intellectual influence in America. Mr. Mencken was recently invited by Life magazine to sound off about the state of the world. Anybody who knows his work might have guessed that he considers the world to-day as a lunatic asylum run mostly by its inmates. The article was titled simply "Mr. Mencken Sounds Off." Sitting at breakfast one morning, he thought aloud in his outrageous and inimitable way and the reporter took it all down, and Life printed it. Don’t please get the idea that Life, or any of its readers, thought it was being in any way daring or courageous. I doubt if it would cross the mind of an American to wonder that the magazine could publish such a piece at all. But at a rough guess, I should say that if Mr. Mencken’s piece had been printed in Britain, he and the magazine would have been snowed under the next morning with anything from a dozen to a score of libei actions. Nobody need be afraid that I will begin to quote names and descriptions, though I feel sadness at not being able to roll the names and the accompanying adjectives over on my transatlantic tongue. But, just as a hint of the kind of thing, I should say that Mr. Mencken has a low opinion of. practically all American presidents and most statesmen everywhere. The recent | run of presidents he calls frauds or nonentities run by frauds. I am not here making a plea or implying a criticism, I am reporting the most marked discoverable difference between press freedom as it is generally understood in Britain and the United States, the widely different limits put. on public writing by a tight libel law and by a loose one. If American statesmen and businessmen tend to wear a harried look, now you know why.