Monthly Archives: February 2012

He said there was a danger it would produce a 'cure that is worse than the original disease' Gove asks for freedom of Press to be defended from judges and celebs

By Jason Groves

Last updated at 9:08 AM on 22nd February 2012

The Leveson inquiry into Press standards has created a ‘chilling atmosphere’ that threatens free speech in Britain, Michael Gove warned yesterday.

In an outspoken defence of the Press, the Education Secretary cautioned against allowing ‘judges, celebrities and the establishment’ to set the boundaries of free speech because they had a vested interest in shackling the media.

Mr Gove, one of David Cameron’s closest allies, also appeared to question the Prime Minister’s decision to set up the inquiry last year, warning there was a danger it would produce ‘a cure that is worse than the original disease’.

The Leveson inquiry into Press standards has created a 'chilling atmosphere' which threatens free speech in Britain, Michael Gove warned

Addressing a Westminster lunch, Mr Gove acknowledged the need to investigate alleged wrongdoing at the News of the World.

But he said there were already laws to prevent reporters ‘going rogue’, including specific offences of intercepting voicemail messages and bribing public officials.

Gove warned there were 'dangers' in the wide-ranging inquiry chaired by Lord Justice Leveson

Mr Gove, a former senior journalist at The Times, said there was a natural temptation for politicians to ‘succumb’ to demands for an inquiry by ‘establishment’ figures in the wake of a major scandal.

But he warned there were ‘dangers’ in the wide-ranging inquiry chaired by Lord Justice Leveson.

He said: ‘There is a danger at the moment that what we may see are judges, celebrities, and the establishment, all of whom have an interest in taking over from the Press as arbiters of what a free Press should be, imposing either soft or hard regulation.

‘What we should be encouraging is the maximum amount of freedom of expression and the maximum amount of freedom of speech.’

He added: ‘Journalists should be more assertive in making the case for Press freedom, and politicians should recognise that we have nothing to gain and everything to lose from fettering a Press which has helped keep us honest in the past and ensured that the standard of debate in this country is higher than in other jurisdictions.

‘The big picture is that there is a chilling atmosphere towards freedom of expression which emanates from the debate around Leveson.

GOVE: A MAN WHO UNDERSTANDS THE MEDIA

Michael Gove was born in 1967 in Edinburgh and was educated at Robert Gordon’s College, Aberdeen and then Lady Margaret Hall, Oxford University.

He has been a journalist since he left university, working for local and national newspapers, radio and TV.

His career began as a trainee reporter for The Press and Journal in Aberdeen.

He joined The Times in 1996 as a leader writer. He also held the position of comment editor, news editor, Saturday editor and assistant editor.

Mr Gove has also worked for the BBC's Today programme, On The Record, Scottish Television, and was a regular panelist on BBC Radio 4's The Moral Maze and has appeared on Newsnight Review on BBC 2.

In addition he is also a published author and has written books including a biography of Michael Portillo.

He was first elected as an MP for Surrey Heath in May 2005. Following the 2010 General Election he was appointed Secretary of State for Education.

He is married to Sarah, a journalist at The Times.

'I think that there are laws already in place that we should respect and principles already in place that we should uphold that are central to ensuring that this country remains free.’

Mr Gove said previous inquiries into national scandals had produced reports that ‘give birth to quangos, commissions, and law-making creatures that actually generate over-regulation, over-prescription, and sometimes a cure that is worse than the original disease’.

He said the Food Standards Agency, which was born out of the BSE crisis, had gone from being a ‘body that was responsible for governing the safety of our food to one that became yet another meddlesome and nanny organisation that was telling us what we should eat and in what proportion’.

And he said 800 pages of guidance produced in the wake of the deaths of Victoria Climbie and Baby P was ‘impenetrable and has still not ensured that our children are safer today than they were two, three or five years ago’.

He acknowledged that he had sometimes been ‘irritated’ by Press coverage of his own conduct, but insisted that the media had a key role to play in holding politicians to account.

Sources close to the Education Secretary last night said he supported the decision to set up the inquiry but was concerned about the direction it had taken.

Downing Street said the Prime Minister stood by his decision to order the inquiry, but insisted he valued the role played by the media.

His official spokesman said: ‘He has made very clear on a number of occasions since how important he thinks it is that we have a free Press and free media that is able to challenge governments and others.’

GOVE'S SPEECH: 'A CHILLING ATMOSPHERE TOWARDS FREEDOM OF EXPRESSION'

“One of the things that struck me over the past few months is that a new set of stereotypes every bit as misleading and caricatured as those about politicians, have grown up around journalists and about the media and the way in which it operates. I am thinking in particular about the Leveson inquiry and the debate that has surrounded it.

“One the things that struck me about politics is that there is a particular tendency to which all politicians are tempted to succumb. In the aftermath of a specific crisis, when an undoubted wrong has been done, there is a desire to find a judge, a civil servant, a representative of the great and the good, inevitably a figure from the establishment, to inquire into what went wrong, and to make recommendations about what might be put right.

“It is a natural thing for politicians to do, but there are dangers associated with it. Sometimes the recommendations of that report may be modest, proportionate and sane. But sometimes they give birth to quangos, commissions, and law-making creatures that actually generate over-regulation, over—prescription, and sometimes a cure that is worse than the original disease.

“If we look back at government’s response to various crises in the past, there have been some profound crises that have affected all of our consciences. And because they have affected our consciences, people have wanted to be seen to act. So for example in the immediate aftermath of BSE and the problems associated with the quality of our food, the Food Standards Agency wa
s quite rightly set up,

“But one of the problems is that the Food Standards Agency morphed over time from being a body that was responsible for governing the safety of our food to one that became yet another meddlesome and nanny organisation that was telling us what we should eat and in what proportion.

“The same thing applied to the vetting and barring scheme and also to the Every Child Matters agenda in the wake of the tragic deaths of Victoria Climbie and subsequently Baby Peter. In both cases the tragic death of two children led to an attempt to ensure that we more effectively policed those that worked with young people but the result of that was a situation where Phillip Pullman had to apply for a Criminal Records Bureau check in order to go into a school to read to children.

“In the same way we developed guidance which is 800 pages long, is impenetrable and has still not ensured that our children are safer today than they were two, three or five years ago.

“I see the same dangers in the Leveson inquiry and in the way in which the debate on press regulation are moving now. It is undoubtedly the case that there were serious crimes which were committed, but we know those crimes were serious because they broke, if the allegations are proven, the already existing criminal law. There are laws against the interception of messages, there are laws against bribery, there are laws that prevent journalists like any other professional, going rogue. Those laws should be vigorously upheld, vigorously policed. However, there is a danger at the moment that what we may see are judges, celebrities, and the establishment, all of whom have an interest in taking over from the press as arbiters of what a free press should be, imposing either soft or hard regulation. What we should be encouraging is the maximum amount of freedom of expression and the maximum amount of freedom of speech.

"The reason why I say there is a particular danger at the moment is that because we all know that newspapers are under threat, under threat from the pressure of advertising migrating online, under threat from a variety of new news sources, that is why whenever anyone sets up a new newspaper, as Rupert Murdoch has done with the Sun on Sunday, they should be applauded and not criticised, and that is why journalists should be more assertive in making the case for press freedom, and politicians should recognise that we have nothing to gain and everything to lose from fettering a press which has helped keep us honest in the past and ensured that the standard of debate in this country is higher than in other jurisdictions.”

“The big picture is that there is a chilling atmosphere towards freedom of expression which emanates from the debate around Leveson. I think that there are laws already in place that we should respect and principles already in place that we should uphold that are central to ensuring that this country remains free.”

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Michael Gove: Leveson Inquiry has created 'chilling atmosphere that threatens free speech'

WASHINGTON (AP) — Free speech cases before the Supreme Court often lead justices to consider far-fetched scenarios, and Wednesday's argument over a law making it a crime to lie about having received top military honors was no exception.

One after another, the justices wanted to know whether a decision upholding the Stolen Valor Act could lead down a slippery slope to new laws against such things as lying about the Holocaust, an extramarital affair, a high school diploma, college degrees or to impress a date.

"Where do you stop?" Chief Justice John Roberts asked at one point.

But the justices also suggested that it might be possible in this case to uphold the 2006 law anyway by reasoning that Congress has an interest in protecting medals it created to honor war heroes.

Justice Anthony Kennedy, who asked about lies about college degrees, also seemed open to sustaining the law.

"Here it does seem to me that you can argue that this is something like a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that. I think we would have to do that," Kennedy said.

The high court has in recent years overwhelmingly rejected limits on speech, striking down a federal ban on videos showing graphic violence against animals and a state law aimed at keep violent video games away from children. The court also rejected the attempt by the father of a dead Marine to sue fundamentalist church members who staged a mocking protest at his son's funeral.

And in 1989, the court said the Constitution protects the burning of the American flag.

Justice Sonia Sotomayor said the earlier cases made clear that merely offending others by itself is not enough to justify limiting speech.

"So outside of the emotional reaction, where's the harm? And I'm not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true," said Sotomayor, who is divorced.

She seemed the least willing member of the court to accept the Obama administration's defense of the law and disputed the view that the value of the highest award, the Medal of Honor, or any others has been diminished because some people lie about having received them.

The administration's top Supreme Court lawyer, Solicitor General Donald Verrilli Jr., defended the law as targeted to protect the integrity of the system established by Gen. George Washington in 1782. Wednesday was Washington's 280th birthday.

"The Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor," Verrilli said.

On the other side from Sotomayor was Justice Antonin Scalia. "When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished by charlatans. That's what Congress thought," Scalia said.

Jonathan Libby, the federal public defender arguing against the law, said Congress' intent is hard to discern because it passed the legislation without any hearings.

The effort to limit the reach of a ruling in favor of the law appeared to be the court's most pressing concern.

Justice Ruth Bader Ginsburg wondered whether Congress could use the same rationale put forth by Verrilli to justify laws against denying the existence of the Holocaust or lying merely about having served in the military.

Justice Elena Kagan asked whether the government's concern about the stability of the family could lead to a law "to prevent everybody from telling lies about their extramarital affairs."

Several justices expressed concern that a ruling striking down the law might also call into question a separate provision that makes it a crime to actually wear an unearned medal.

Libby's client, Xavier Alvarez, was one of the first people prosecuted for violating the Stolen Valor Act. Alvarez told a meeting of the Three Valleys Municipal Water District in Pomona, Calif., to which he had been elected, that he was a wounded war veteran who has received the Medal of Honor.

He never served in the armed forces.

Libby said public exposure of lies about military medals is preferable to prosecution. Alvarez "still was exposed for who he was, which was a liar," Libby said.

The two federal appeals courts that have considered the issue have come to different conclusions. The 9th U.S. Circuit Court of Appeals in San Francisco struck down the law in Alvarez's case. The 10th U.S. Circuit Court of Appeals in Denver upheld the law in the case of another false claim of military valor.

Civil liberties groups, writers, publishers and news media outlets, including The Associated Press, have told the justices they worry that the law, and especially the administration's defense of it, could lead to more attempts by government to regulate speech.

Veterans groups are backing the administration.

If the court were to strike down the law, legislation proposed by Rep. Joe Heck, R-Nev., would make it a crime to benefit from lying about a military record.

A decision is expected by late June.

The case is U.S. v. Alvarez, 11-210.

___

Online:

Military Times Hall of Valor database: http://militarytimes.com/citations-medals-awards

Read more:
High court torn over law banning lies about medals

Enlarge Bruce Smith/ASSOCIATED PRESS

The Supreme Court heard arguments over whether it should be a crime to lie about receiving military medals. Here large replicas of the Medals of Honor hang at the Medal of Honor Museum.

Bruce Smith/ASSOCIATED PRESS

The Supreme Court heard arguments over whether it should be a crime to lie about receiving military medals. Here large replicas of the Medals of Honor hang at the Medal of Honor Museum.

The U.S. Supreme Court took up the subject of lying on Wednesday.

Specifically at issue was the constitutionality of a 2006 law that makes it a crime to lie about having received a military medal. But the questions posed by the justices ranged far beyond that — from advertising puffery to dating lies.

At the center of the case is Xavier Alvarez, a former California county water board member who is an undisputed liar. Among his lies is that he played professional hockey, served in the marines and rescued the American ambassador during the Iranian hostage crisis. None of those lies was illegal.

But when he claimed to have won the Medal of Honor, that lie was a violation of the Stolen Valor Act, which makes it a crime to make false claims about receiving military medals.

Alvarez appealed his conviction and won. A federal appeals court struck down the law as a violation of the First Amendment guarantee of free speech.

The government appealed to the Supreme Court where, Solicitor General Donald Verrilli on Wednesday told the justices that the law regulates only a narrowly drawn category of calculated falsehoods and that the "pinpointed" pure lies targeted by the statute are not speech protected by the First Amendment.

But Verrilli soon faced a barrage of questions about when Congress can make it a crime to tell a lie that does not defraud or defame.

Justice Sonia Sontomayor began by asking whether, under this law, the Government could have prosecuted a Vietnam War protester for holding up a sign that said, "I won a Purple Heart — for killing babies," when the protester had not won the medal.

Verrilli answered that "it would depend" whether that expression was "reasonably understood by the audience as a statement of fact or an exercise in political theater."

"That's somewhat dangerous, isn't it," responded Sotomayor, noting that she thought it was the government's position that there are no circumstances in which calculated and false factual speech has value.

Yes, Verrilli said, that is the government's position. It is also the Supreme Court's position, expressed repeatedly in its opinions, he maintained.

At that suggestion, Justice Anthony Kennedy almost levitated out of his chair.

"I simply can't find that in our cases," he said. "I think it's a sweeping proposition to say that there's no value to falsity."

Verrilli responded by trying to narrow the reach of the language in the Stolen Valor Act. The law, he argued, regulates "a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and that's information that is ... uniquely within the knowledge of the individual speaker."

Still, Chief Justice John Roberts wondered, "Where do you stop?"

Could Congress make it a crime for a person to falsely claim that he graduated from high school?

Verrilli conceded that Congress, or more likely state governments, could make it a crime to lie about having graduated from high school.

Justice Kennedy, however, was clearly in search of some narrower category of false speech that could be outlawed. "You can argue that this is something like a trademark, a medal in which the government and armed forces have a particular interest, and we could carve out a narrow exception for that," he said. "But just to say that ...there is no value to false speech. I simply cannot agree."

Justice Samuel Alito asked whether the military medals law is limited to statements a person makes about himself.

Verrilli said it is, but then Alito asked why the government chose to draw the line there. "Suppose the statute also made it a crime to represent falsely that ... a spouse or a child was a medal recipient?"

Justice Ruth Bader Ginsburg broadened the question further. Could Congress criminalize other false statements, such as denying that the Holocaust occurred?

Verrilli replied that that kind of statement would be protected under the First Amendment because "it's so bound up with matters of ideological controversy." He said that the Holocaust example was different from this case, which involves, with "pinpoint accuracy, a specific verifiable claim about yourself having won a medal."

Justice Elena Kagan noted that quite a few states have laws on the books that make it a crime for political candidates to lie during a political campaign. But Verrilli said those laws too would likely be unconstitutional because they would risk chilling speech.

Justice Antonin Scalia noted that "Even in the commercial context we allow a decent amount of lying, don't we? ... It's calling puffing."

"What about lying about extramarital affairs?" asked Kagan. After all, she observed the government has a strong interest in the sanctity of the family.

Verrilli acknowledged the hypothetical presented "a hard case."

"The trouble is," interjected Justice Stephen Breyer, that we "can think of 10,000 instances that meet your criteria," for laws that could criminalize everyday lies.

"[T]he core of the First Amendment," observed Justice Sotomayor, is to protect even offensive speech." In this case, she contended, "we don't think less of the medal ... we're offended " by the lie. "So outside of the emotional reaction, where's the harm?"

"I'm not minimizing it," Sotomayor added. "I take offense when someone I'm dating makes a claim that's not true."

At that, Solicitor General Verrilli piped up. "As the father of a 20-year-old daughter, so do I."

But this law involves weighty symbols of courage and valor, Verrilli said. These medals "are a big deal. You get one for doing something very important, after a lot of scrutiny. And for the government to ... stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers."

In that case, Justice Ruth Bader Ginsburg wondered, did the military ask Congress to enact the military medals law?

No, Verrilli replied. It did not.

Following Verrilli to the podium was the lawyer for Alvarez, public defender Jonathan Libby.

The first question came from Chief Justice Roberts: What is the First Amendment value in a pure lie?

Libby answered that people often make things up about themselves, such as when "Samuel Clemens created Mark Twain," fabricating much material about his own biography.

Roberts dismissed that example, saying Twain lied for "literary" purposes.

Justice Alito persisted: "Do you really think that there is a ... First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself?"

When Libby floundered, Justice Breyer interjected by providing an example of a lie that
had value: "Obvious example...are you hiding Jews in the cellar? No."

Even some of the Justices who voiced concerns about the government's argument still seemed reluctant to strike down the law outright.

Justice Kennedy opined, "It's a matter of common sense that...[the false claim to a medal] demeans the medal."

Justice Kagan questioned whether the Stolen Valor Act could affect other forms of speech. "The reason we protect some false statements...is to protect truthful speech," she observed. So, "how is it that this statute will chill any truthful speech?"

Defense lawyer Libby conceded that he could not think of a way the Stolen Valor Act would in fact chill speech.

A surprised Kagan replied, "Boy ... that's a big concession, Mr. Libby."

Still, Libby insisted that in order to justify a law like this one, there would have to be an immediate targeted harm that is inflicted or there would have to be some sort of personal gain from the lie.

How much harm, asked Justice Alito. Suppose the lie built up the liar so much that he got a date with a rich potential spouse. Would that be enough harm?

I certainly would not think that is a significant "thing of value," Libby responded.

Alito, with a wry smile: "Some people might have a different opinion."

Read more:
Is A Lie Just Free Speech, Or Is It A Crime?