Will Soft Obliquities Silence a Stinging Tongue?

In its recent 7-2 decision that “opinion” was no longer a protection against libel actions, the Supreme Court has struck a mighty blow against plain speaking. By expanding defamation liability to include statements of opinion, the court has declared open season on columnists, cartoonists, reviewers, civic activists--even newspapers and broadcasters that quote an allegedly libelous statement.

Do we really want to copy the English system, which traditionally punishes free and vulgar speech?

Outsiders, indeed many Britons themselves, often do not fathom just how repressive England’s libel laws are. British newspapers daily report major libel actions--first the writ (filing the suit), then the trial, and almost inevitably a verdict for the plaintiff. In almost all libel cases, particularly if tried by juries, plaintiffs win large, sometimes huge, awards--with costs. For the middle-class professional especially, an impugned reputation is a gold mine. Doctors, lawyers, authors, architects--even hairdressers like Mr. Teasy Weasy--reach for a writ as quickly as they do a gin and tonic.

Organs of opinion, from the BBC to Private Eye, either censor themselves or develop a nasty style of innuendo in the hope of avoiding court actions. Politicians left, right and center--Winston Churchill, Jeremy Thorpe, Harold Wilson--have employed batteries of lawyers to suppress criticism. Investigative journalism is throttled in the question-asking stage by reporters and editors wise to the power of a libel writ. Prior restraint is a way of life. My own novel, “Zone of the Interior,” published successfully here, was in effect banned in Britain because a libel lawyer deemed it an “unsafe business risk.”

Most English writers and editors I know so internalize the proscriptions of libel that they hardly think about it any more--and that is the point. The almost certain knowledge that you will be served with a financially crippling writ functions as a censor in deep cover. You learn to evade, circumlocute, ease off with subtle allusion and soft obliquities. The famous understated tone of so much contemporary English writing, whether in fiction or journalism, is more the product of libel laws than the British sense of taste.

After spending half my life in England, I have come back to the United States, with some regret but also with relief. I am an American writer who in the end needs to say (and write), “Throw the bum out!” not “Perhaps, on reflection, the Rt. Hon. Gentleman, however admirable his intentions, might agree that the prejudiced observer would too hastily draw the conclusion that the appearance, as opposed to the substance, of propriety was not well served by his no doubt perfectly innocent investments in, etc. etc. etc.”

We are, or used to be, a direct people. Hyperbolic vulgarity and offensively plain speaking is part of our tradition. The Supreme Court is sending a strong signal to lower courts, and the rest of us, that the First Amendment is not a wall to defend us but a turnstile to let in greater numbers of speech-suppressive libel actions. This can only profit the lawyers--and politicians and corporations afraid of the truth borne on a stinging tongue.