andersen-ottaway lecture

1988 Andersen Lecture
Andrew Neil
Editor, The Sunday Times, London

Britain's Free Press: Does It Have One?

A former owner of The Sunday Times said that "it is a part of the social mission of every great newspaper to provide a refuge and a home for the largest possible number of salaried eccentrics." I am about to show that being an eccentric is no longer enough to run a British newspaper and to take on the British government, given the threats to our freedom.

I am going to talk a lot about judges and lawyers. One famous Englishman once described a judge saying, "He has all the virtues of a great English judge. He is slow, patient, courteous, and wrong." The accuracy of this view is going to become apparent as I get on with my speech.

Dealing with judges is rarely easy. There was one counsel who was trying to explain an elementary point of law when he was interrupted by the judge, who said to the lawyer, "Do you not credit this court with the knowledge of the very rudiments of law?" To which counsel replied, "That, my lord, was the mistake I made in the lower court."

I have had to deal a lot with lawyers, too. A lawyer is best defined as a man who induces two other men to strip for a fight and then runs off with their clothes. Indeed, I have always agreed with Keats in his definition when he said, "I think we may class lawyers in the natural history of monsters."

I want to tell you a story. It is quite a long story, but I want to draw some important lessons from it. The story goes like this: On Tuesday, July 7, 1987, I made a trip to New York, which was to incur the fury of the British government (and still does 18 months later). This trip placed The Sunday Times at the center of one of the longest and most bitter battles between press and government in this century. It could result in, at best, my newspaper being heavily fined and, at worst, a term in jail for its editor.

My crime was to catch the evening Concorde to New York that day to obtain a copy of Peter Wright’s Spycatcher - the book that every journalist in Britain wanted to get his or her hands on and the book that the British government was determined would not be published. Let me explain how my role in the Spycatcher affair came about.

I first became interested in Spycatcher following the opening of the trial of the British government against the publishers, Heinemann-Australia, and Mr. Wright in Sidney in November 1986. As the trial revealed more and more matters of interest and importance to the British, I decided to try and obtain the British serial rights for The Sunday Times. Unlike the United States, the serialization of important books, especially memoirs of a political nature, has long been a feature of quality British Sunday journalism. Large sums are spent to secure these serial rights because they can be important circulation-builders and because of the interest to readers of the quality press. So I was not surprised to discover that may others were also in the running for Spycatcher.

When negotiations started with Heinemann in Australia, I intended to await the outcome of the litigation brought by the British government in Australia before publishing any extracts. I believed this was the right course to follow because, at that time, I had no way of knowing if Spycatcher contained information damaging to British national security. To this matter of principle was added a compelling practical reason. Heinemann in Australia would not provide me with a copy of the manuscript because of the Australian court. As negotiations dragged on, so did the court proceedings in Australia. This was the trial in which Peter Wright’s lawyer, Malcolm Turnbull, had a field day pricking the pomposity and obsession with secrecy of the British governing classes. The British government was represented by the cabinet secretary - the chief civil servant in Britain - Sir Robert Armstrong, now Lord Armstrong.

A number of people have been ennobled for services to Spycatcher, among them Lord Armstrong. (We call them "Spycatcher peers"!) I say this with a certain bitterness because, as a result of my role in Spycatcher, I won an award from the British Fleet Street house paper: the Buckingham Palace Award for the editor least likely to ever receive a knighthood. This is a badge I wear with pride.

At one stage in these proceedings, some of you may remember, Sir Robert Armstrong denied that he knew anything about something called "M16." (This is Britain’s overseas intelligence service; "M15" is the counterespionage service operating largely in Britain.) Another time, he had to admit, misquoting Burke, that he had been economical with the truth. The clash was best summed up, I think, in a headline in The Sunday Times: "The Wild Colonial Boy versus the Upper Class Brit." This did not endear us to Sir Robert - I beg your pardon, Lord Armstrong.

By June 4 of 1987, we had at last secured an agreement for the British serial rights of Spycatcher. But securing the right to publish Spycatcher from the publishers was one thing; being able to do so was clearly going to be another.

As the fun in Australia unfolded - at least fun if you were not Sir Robert Armstrong - more important developments were taking place in the United States. As final negotiations with Heinemann came to a close, I was told that Viking Penguin, Inc., had bought the American publication rights to Spycatcher, that publication of Spycatcher in the United States was imminent and would take place before the conclusion of litigation in Australia. This, to me, transformed the position because, with U.S. publication, the contents of the book would become available to anyone who wished to read it, regardless of what happened in the Australian proceedings. It also meant - and this was important, too - that there was a possibility of obtaining a copy of the book.

So I contacted Mr. Allan Kellock, a senior editor of Viking Penguin. When I first spoke to him, he told me that Viking Penguin proposed to publish Spycatcher in the United States sometime in July or August of 1987. He was not more specific than that. At that time, he was also not prepared to let me have a copy of the manuscript. He told me, however, that the British government did wish to prevent publication of the book in the United States, but it had not taken proceedings to achieve this because it had been advised - rightly, in my view - that such an action by the British government in U.S. courts was bound to fail because of the First Amendment to your constitution.

I decided that publication of extracts in The Sunday Times should coincide with publication in the United States and that the first extract should be published when Viking Penguin began shipping copies of the books out to its warehouses. As far as I was concerned, the imminent publication of Spycatcher in the United States meant that any argument put forward by the British government that material in the book was confidential (so its publication would damage national security) could no longer be considered valid because the information contained in the book would no longer be secret.

I thought it absurd that the British public should not be able to read information of major importance and concern to the British, which was being published in the United States. I believed that the British public was entitled to read what the U.S. public was entitled to read, especially because the book contained information about the workings of the British government and alleged malpractices of government servants and intelligence agents.

By the end of June 1987, what we used to call "Fleet Street" was beginning to suspect that a British newspaper had acquired the serial rights. I had been told by Allan Kellock that he was being besieged by British journalists trying desperately to obtain a copy of the book. I was concerned that they might succeed and that other newspapers might publish extracts in breach of our serialization rights.

At the beginning of July, I was still the only person at The Sunday Times who knew that we had acquired the United Kingdom (UK) serialization rights. On Saturday, the 4th of July, however, I learned that one of our investigative journalists on The Sunday Times had discovered that The Sunday Times had acquired the rights. He had been asked by our news desk to discover whether there were any plans for publishing Spycatcher in the United Kingdom. He managed, by the use of a clever ruse, to obtain confirmation from the managing director of Heinemann in London. The managing director told him that The Sunday Times had indeed acquired the UK serialization rights and that publication was imminent in the United States.

Although this was reassuring about the investigative abilities of The Sunday Times, it was not at all helpful to me at the time. So I called Allan Kellock again at Viking Penguin. I told him what had happened, and he told me that our rivals in the Sunday market were bombarding him with telephone calls inquiring as to the progress of the publication in the United States. I decided I had no option but to bring forward our plans; serialization in The Sunday Times would begin the following Sunday, July 12, and I would need a copy of the book a week earlier than anticipated. On Monday, July 6, 1987, I told The Sunday Times legal adviser that, subject to a negative legal response, I intended to publish extracts from Spycatcher on the following Sunday. He gulped. I said that I was going to New York to obtain a copy of the book and asked him to obtain legal advice as to whether we would be in contempt of court if we published it. The reason I asked the question was that interlocutory (or interim) injunctions had already been granted to the British attorney general against the Observer and The Guardian in the summer of 1986, in relation to small amounts of Spycatcher material that they had published.

On the 8th of July, leading counsel advised that The Sunday Times would not be in contempt of court for the reasons given in a court judgement dated June 2, 1986, which counsel advised me was a correct statement of English law. Essentially it said that although injunctions were out against two other papers, they did not automatically fall against any other paper because that would mean that the government would only have had to obtain one injunction to gag us all.

The counsel confirmed this in writing. When I received advice that we would not be breaking the law, I decided to proceed. My view was that The Sunday Times had material to disclose that would be in the public interest of the British people, and, provided we were not breaking the law in doing so, the material should be published. I was well aware, however, that if the government discovered our plans on or before the night of Saturday, July 11, while the paper was being distributed, it would apply for - and probably obtain - an ex parte injunction preventing publication of all or part of that issue of The Sunday Times, without giving The Sunday Times the chance to defend itself in court first. Such is the law in England. It was decided that the first edition of the newspaper, therefore, should be published without the extracts from Spycatcher. (I will explain why in a minute.)

On July 7, I flew by Concorde to New York to obtain a copy of the book from Viking Penguin. We met at Smith and Wolensky’s, which is a steak house on 49th and 3rd, where few British people go. Allan Kellock told me that Viking Penguin had itself decided to publish Spycatcher a week earlier because the company could not bear another week of endless inquiries from British journalists, politicians, and government officials asking when the book would be available. Two members of parliament had themselves volunteered to fly over to get the book, and the British Information Services, the official arm of the British government in New York, had put in an order for 12 copies and asked if it could have a discount.

Kellock handed me the book at midnight that night, which was 5:00 in the morning by my London clock. I took the book back to my apartment in New York. I thought about editing it there and sending a facsimile transmission (fax) of the edited version back to London. I was advised, however, that faxes are not secure and that British intelligence might well be able to eavesdrop and find out what we were doing. This, of course, was a gross overestimation of the abilities of British Intelligence, which probably has not even heard of the fax. But I was worried about coming through Customs with a copy of Spycatcher in my suitcase. But, again, this was another gross overestimate of the intelligence of British Intelligence.

I flew back to London on the next Concorde on Wednesday, July 8. During the flight, I went through the book, deciding and editing the first extracts to be published. I selected them on the basis of what I considered to be of major public importance and interest. By lunchtime Friday, July 10, a hand-picked team of senior Sunday Times executive editors were working away in a nearby hotel suite, editing the extracts and designing the layouts. We wanted to keep it very secret. It is not that we did not trust our journalists; it is just that journalists are incapable of keeping a secret.

Later that day, The Sunday Times, together with other national newspapers, received a faxed letter from the Treasury solicitor, who is one of the major legal officers for the British government, warning us that any person responsible for publishing material emanating from Peter Wright was at risk of being named in proceedings for contempt. We were not, however, asked for a promise not to publish the contents of Spycatcher. Amusingly, the Observer was.

On Saturday, July 11, the senior editors had moved back to our offices but not into The Sunday Times’s office - instead, they moved into the deserted offices of the daily Times, where they continued their work. By 5:40 that Saturday afternoon, the layout was complete and printing of the first edition started at 6:03 p.m. and continued until 6:49 - a short run, during which 76,000 copies were printed. This edition did not carry any extracts from Spycatcher. It went on street sale that night in London, Glasgow, and Edinburgh, and some copies were sent abroad. That was also - surprise, surprise - the edition that we sent round to every British government office that has a press officer there on a Saturday night. Presumably they went off to dinner or to their country homes, secure in the knowledge that the world was safe for their style of democracy for a while yet.

Having done that, we stopped the presses, replated the pages with the Spycatcher contents, and from 7:08 that night until 4:23 on Sunday morning in London and in Scotland, we printed an estimated 1.4 million copies of The Sunday Times, a page-one story and four pages of extracts inside on "How M15 Plotted Against the Prime Minister" - rather an important story, I would have thought, for any newspaper. "We bugged and burgled our way across London, at the state’s behest" - a marvelous story of how M15 tapped the French embassy during the negotiations for British entry into the Common Market and the interrogation of Anthony Blunt, the infamous "fourth man."

As you can imagine, this was something of a bombshell when it hit the streets that Sunday morning in Britain. Actually, it was a delayed bombshell, because the BBC had stuck with the first edition all night. So their news missed the story, and it was not until 11 a.m. on Sunday that they suddenly realized a major event had taken place. It was then that the attorney general decided to move into action.

Now, my intention in publishing extracts from Spycatcher was to inform the British public of the contents of the book so as to assist the public in forming a judgment for itself on the important issues that Mr. Wright had raised. My intention was to pursue what I considered to be the central role of a newspaper: that is, to contribute to an informed debate on important matters of public interest. There had been so many leaks and reports purporting to be based on Spycatcher that it seemed to me important, given the serious nature of the allegations, that the public should have the opportunity to read what Peter Wright was saying in his own words.

I did think that the government’s general position as regards the publication of Spycatcher would be radically altered by the publication of the entire book in the United States - a matter that was beyond the control of the British government or anybody else in Britain. U.S. publication, as I have said, would make Mr. Wright’s allegations freely available, not only to the U.S. public, but also internationally to anyone who visited the United States and to anyone who bought Spycatcher from the United States by post or telephone. Any secrecy remaining in the material would be lost. So I believed that with U.S. publication, the government would come under increasing pressure to drop its efforts to ban the book. In other words, the government would throw in the towel, and it would not continue with the ludicrous position that it was all right for the KGB to buy the book on Fifth Avenue, but it was not all right for the British public to buy it. Because the allegations of a former insider - that is, Mr. Wright - that Sir Roger Hollis, the former head of M15, was a Soviet spy and that elements in M15 had instigated a plot to destabilize Harold Wilson’s Labour government in the mid-1970s were far more pressing public interests to the British than to Americans, I considered it absurd that such serious allegations could be published and debated in the United States but not in Britain.

I believe that The Sunday Times, like all responsible newspapers, has a duty to inform its readers on matters of public importance and interest, particularly matters concerning the manner in which our elected representatives and public officials exercised their powers and carry out their functions. It is, in my view, a central role of a free press in a democracy to report and comment on the activities of government. I also believe that it is a basic right of the British public to be informed by newspapers about such matters. To the extent that the press fails to report on government activities, we lose an important deterrent to inefficient or improper or corrupt government activities and an important contribution to informed public discussion. I believed that the publication of extracts from Spycatcher would contribute to an important public debate in the United Kingdom on the accountability and activities of the security services, and because of U.S. publication, our publication could cause no conceivable harm to national security.

These were my views and my reasons for doing what I did. They were not the government’s. On Monday, July 13, the attorney general commenced proceedings for criminal contempt - not civil contempt, criminal contempt - against The Sunday Times and its editor. The attorney general was also granted an injunction against the publication of any further extracts of Peter Wright in The Sunday Times.

That was the beginning of a tour d’horizon of the upper echelons of the British legal system. We opposed the interim injunction in the high court in London on July 22, 1987. We won. The government went to the court of appeal on July 24, 1987. We lost. We went to the House of Lords - that is, the law lords in the House of Lords - the equivalent of the U.S. Supreme Court. (Or not, as you will see in a moment. I wish they were.) On August 13, we went there. We lost. The government was granted its interim injunction.

So, we now had to fight to stop this injunction becoming permanent. We went to the high court on December 21, 1987 and won. The government went to the court of appeal on February 10, 1988 against the high court decision. We won again. The government appealed again to the House of Lords. On October 13, their lordships ruled, and we won. Fifteen months later, around 3 million in legal costs had been spent by the newspapers involved and the government, and we had won. It seemed at the time a famous victory. When you read the judgments of their lordships, you will see that it was a hollow victory.

Let me talk now about some of the implications of this case. It is important to realize that the British government at no stage resorted to the Official Secrets Act, which is meant to defend national security. Instead, it used the laws of confidentiality. Its argument throughout was that Peter Wright had a duty to keep quiet about what he had learned while an M15 agent. Why had it used the law of confidentiality, rather than the Official Secrets Act? I think quite simply because the Official Secrets Act means trial by jury. It means that national security or damage to national security has to be proven before a jury will convict, whereas by going for the law of confidentiality, it meant trial by judge (no jury), and it meant that the government could argue about keeping things confidential, which might not involve national security at all, but might well involve embarrassment to the British government. Nobody ever denied - least of all The Sunday Times - that Peter Wright did have a duty of confidentiality. What we did argue was that Peter Wright, or anyone else in his position, had obligations to the public interest that could override the duty of confidentiality.

I want to repeat his allegations. He is not the only person who has made them. He has alleged that the former head of M15, Sir Roger Hollis, was in fact the "fifth man" - a Soviet agent. Now, that seems to me to be a matter of pressing public interest. It also seems to me not to be beyond the bounds of possibility, given the record of the other people who used to run British Intelligence. We have had Philby, Burgess, Maclean, and Blunt, the four best know Soviet spies. There have been many others, too, and it is perfectly possible that a fifth man was there. More important than that, if he was the head of M15, how many people had he put in place in top positions in M15 today?

The other allegation was that an element of M15 had attempted to undermine a democratically elected British government. Now I did not happen to like that government all that much, but I do not want M15 to get rid of it for me. It is the job of the ballot box to do that, which it did in 1979. The fact that allegations of this nature were being made is far more serious, it seems to me, than anything that happened in this country during Watergate or what Colonel Oliver North did with Iran-contra. These questions seem to me to override any duty of confidentiality, especially because what was being alleged was that a proper investigation had not been done into Sir Roger Hollis or into those officers involved in the attempt to destabilize the government.

The depressing thing about the House of Lords ruling was that it barely acknowledged any public interest in the press’s role of disclosure of public wrongdoing. Lord Keith, who was the senior judge of the five law lords, said, "I would stress that I do not base this [by "this," he means the throwing out of the injunction against us] upon any balancing of public interest, nor upon any considerations of freedom of the press, but simply on the view that all possible damage to the interest of the Crown has already been done." In other words, it wasn’t a matter of principle, of a free press in a free society. It was simply that the cat was out of the bag, and he could not find any way of getting it back in. If he could have stuffed it back in the bag, then Lord Keith made it clear that he would have supported the injunction being made permanent. At the same time, he said that The Sunday Times, for its "sneaky methods," must account for any profits it had made by publishing Peter Wright’s memoirs. He admitted that if the court had found out in advance that we were going to publish extracts, then there would have been no question that an injunction would have been granted to the government to stop us from publishing.

Lord Brightman, author of the law lords, also spoke of the need for The Sunday Times to give an account of profits for "the offending installment, which was part of a deceit to hoodwink the government." "The Sunday Times," said Lord Brightman, "was a proven wrongdoer." He said he felt disposed to grant an injunction against The Sunday Times from ever being able to write about M15 again, but the other law lords would not quite go that far, so he decided to drop it. They were sympathetic, however.

Lord Griffiths said that The Sunday Times was "tainted with Peter Wright’s breach of confidence." He also said that the publication of accusations of wrongdoing was not necessarily in the public interest. He then went on to suggest another course of action, which speaks volumes for the attitudes of the judiciary. He said that an editor, if given such accusations or allegations,

should inform the Treasury solicitor [a senior government law officer] that he was in possession of such information and intended to publish it. This would enable the government to apply for an injunction, so that a judge could decide whether the balance came down in favor of preserving secrecy or publication. Failing that, the editor should take his information to the responsible cabinet minister.

It seems that, in these law lords’ eyes, the press is to be an arm of government, a gatherer of information for the government. I think the most charitable thing that can be said is that the whole Spycatcher saga ran through so many judges that we ran out of ones that could think for themselves by the time we eventually got to the House of Lords.

Now, I have to report to you that matters are about to become worse. A new Official Secrets Act is being put into Parliament by the government in the current session that will place a lifetime obligation of confidentiality on all M15 officers. If one officer reveals anything about his work, even if it is in the public interest, he will be liable to prosecution, as will the paper that publishes the revelations. So, if an M15 officer knew of, for example, widespread illegal phone tapping and revealed it, he would be breaking the law and would enjoy no public interest defense. Or worse (and this is pure hypothesis), suppose there was in some distant time some joint Central Intelligence Agency (CIA) - M15 plot to destabilize a future Labour government. Any agent who decided to whistleblow on this undermining of the democratic process could not use the public interest as his or her defense.

Now, it need not be like this. There is a perfectly reasonable system that exists on this side of the Atlantic for secret service agents waiting to be copied. In CIA contracts, you will find a publication submission clause, in which CIA agents who wish to write their memoirs must submit them for clearance and for blue-penciling. There is also an appeal system in which an agent can appeal if the CIA says that national security is involved and the agent thinks it is not, and the appeal system can decide. The agent can also ask about some issues that are covered by national security that no longer need to be.

Those who breach the contract can be sued. Frank Snepp, a former CIA agent who wrote a book about his doings in Vietnam called Decent Interval, did so without clearance. The CIA sued and won. They also won a restraint of profits. We asked Floyd Abrams, the distinguished U.S. lawyer who specializes in freedom of the press matters, to do a sworn affidavit for our case to be submitted to the House of Lords. It gave the following legal advice.

If the United Kingdom had a similar contract with its agents, it would be enforceable in American courts. But as long as the British government’s position is that government agents have to take their secrets with them to the grave, no matter what it is, whether it is one lump or two that they take in their tea, then that is unenforceable in any American court, given the First Amendment to the Constitution.

Note that these limits on government employees in the United States are not imposed on the U.S. press, unlike in Britain, where the courts ruled that Wright’s duty of confidentiality fell fully on newspapers, too, and that those who printed his confidences were every bit as much in breach of that duty of confidence as Wright himself. Under U.S. law, whatever the legal obligation on Wright, none could be attached to newspapers. "It would be contrary," said Abrams, "to the most basic tenets of U.S. law." He said, "these would not be difficult questions under U.S. law. There wouldn’t even be questions at all."

At the end of the day, it seems to me, it comes down to the role of the press. Walter Lippmann in 1922 described the role of the press as what it should be: "the beam of a searchlight that moves relentlessly about, bringing one episode and then another out of darkness and into vision." Alexis de Toqueville said that the role of the press was "to summon the leaders of all parties, in turn, to the bar of public opinion." The Supreme Court, in 1966, said that the role of a free press was "a powerful antidote to any abuses of power by government officials." I ask you to contrast these three quotes with the rulings of their lordships in the Spycatcher case.

I want to dwell a minute on what else Floyd Abrams said in his sworn affidavit for us and for the other newspapers. This involves the power of restraint. The ban on judicially imposed prior restraints on public information by newspapers is, under U.S. law, all but absolute. In no case yet decided has the U.S. Supreme Court ever countenanced the entry of a prior restraint against publication of a news article by a newspaper. In 1974, Justice Byron White said, "The First Amendment erects a virtually insurmountable barrier between government and media so far as government tampering in advance of publication of news and editorial content is concerned." In the landmark Near v. Minnesota, the ruling there was that prior restraint on speech and publication are the most serious and the least tolerable judgments on First Amendment rights. In the Pentagon Papers case, the conclusion was that prior restraint was denied even though the source had provided them possibly as a result of criminal conduct and that the government had used strong national security arguments.

Now, there was one case in which details of a hydrogen bomb (H-bomb), or how to make it, were going to be published by the Progressive Magazine, and an injunction was granted against the Progressive from publishing it. Then another magazine, unbeknown to the courts, published the same detail, so the injunction was then lifted. That, too, is consistent with the First Amendment and with the legal principle that equity shall not intervene when it will do no good to do so. In England, we say that the law should not be an ass. In Spycatcher, the law has been an ass because that is precisely what the law has tried to do. It has tried to intervene when it would do no good. Indeed, the attitude of the British government on the Spycatcher case was best summed up by Anthony Lewis. It reminded him of a scene from Mutiny on the Bounty in which Captain Bligh orders a member of the crew to be given 100 lashes. After 60 lashes, the crewman who was doing the beating goes up and says, "the man has died." Captain Bligh says, "I ordered 100 lashes." This has been very much the attitude of the British government.

Apart from the repugnance with which restraints on the press are viewed under U.S. law, the notion that a court would seek to rebottle a secret that is no longer secret is an anathema to U.S. law. But again, that is what the British government tried to do in the case of Peter Wright. They tried to use prior restraint, which is almost impossible here, and they tried to rebottle a secret that was no longer a secret.

Yet the new Official Secrets Bill currently going through Parliament specifically rejects prior publication as a defense for publication. The mere fact that a secret has already been published will be no defense for publishing it again.

Now, we have been here before. Some of you will remember the Crossman Diaries, the memoirs of a Labour cabinet minister in the 1960s, a diary that he kept of all the cabinet meetings that The Sunday Times decided to publish. The government chose again not to invoke the Official Secrets Act because it is unpopular and the jury might not convict, especially when the contents of Mr. Crossman'’ diaries were really upmarket gossip - embarrassing, perhaps, to the government - but no threat to the security of the state. So, the government went instead for a civil order, restraining publication, which would be decided without a jury by a judge alone, with no need to put the editor in the dock. In this particular case, the lord chief justice refused to stop publication, but he upheld the principle of prior restraint as a method of curbing public discussion. He upheld that the common law doctrine of confidentiality could be used to curb the press when the Official Secrets Act proved uncongenial to the government.

As a result of that ruling - although we won - repression of speech and freedom of the press were made a little bit easier for future governments. It was used, for example, to stop an employee of British Steel from revealing wrongdoing and incompetence by that company. The television company that had the documents could not use the documents because they were confidential to the company and had to hand them back. And it was used against The Sunday Times in the famous thalidomide case. We ran articles based on company documents showing serious faults in the testing of that dreadful drug and in the promotion of it. They were banned by the courts because the documents were confidential. We took, I think it was, three to five years to fight that battle, and we eventually won a ruling from the European court that the ruling of the British courts was a violation of free speech. I have a feeling we will soon be in Strasbourg again.

I want, finally, to finish on why it should be so in Britain. Anthony Lewis said in a recent lecture that the public right of free speech in Britain is not a prime value. "Judges often speak of it as a treasured right, but the results of case after case are to the contrary. Freedom to argue the facts of public policy loses out to the claims of confidentiality, foreign policy, legal order, and so on. Even the most direct assault on press freedom seems to evoke little outrage." Why should that be so? I can confirm that he is right. My mailbag during the whole Spycatcher affair was almost wholly hostile. The readers of The Sunday Times did not like what we had done. They saw Wright as a traitor who should be locked up.

The tabloid press in Britain is also always ready to wrap itself in the flag. They took the same line as a lot of our readers. So there was no common front, and there rarely is a common front among newspapers when freedom of the press issues are at stake. Even the Observer and The Guardian, who were locked in combat on our side, tried to distance themselves from The Sunday Times because we had the rights to Spycatcher, and they did not. The highly competitive nature of British newspapers means that it is very difficult for the press ever to take a common front, and editors are more prone to score points rather than stand firm in defense of their basic freedoms.

I come back to the tabloids again, as my third point. The tabloids have the freedom to write what they want within the law and the freedom to abuse. It is sometimes difficult, when one sees the shenanigans of the British tabloids, to feel quite as strongly about press freedom as you do in the United States. When you have headlines such as "B-52 Bomber Found on the Moon," followed next week by "B-52 Bomber Disappears from the Moon," or "Sexy Susy Makes Love to Soap Opera Star," it is sometimes hard to pose as defenders of the faith. The tabloid press have the freedom to do what they want, but they exact a price in making sure that the British press does not enjoy the same image that the U.S. press enjoys.

The libel laws in Britain are tougher. I would like them to stay tougher because they are one way of making sure that the tabloids have some limits to what they can write, and they must stick within some semblance of the truth. I have found that in our job, the libel laws pose no problems to try to root out government wrongdoing.

The fourth reason why the British press is in a difficult position, I believe, is because of the special role of British television. British television talks a lot about its public service ideals, but it operates on a tight government leash. The BBC depends upon its government-imposed license fee for its money. Independent Television (ITV) has depended traditionally on a government-protected monopoly of advertising revenue. They depend on government privilege for their unique positions; therefore, any government will come knocking on the door wanting a payback at some stage. Recently, we have seen attempts to ban television programs and have now been told that Sein Fein activists cannot be interviewed on British television. Controversial programs will always run afoul of the government in a way that I think would be impossible in the United States.

Let me just go through two more issues. The problem with the British judicial system is that the judges have always gone to the same schools, the same universities - usually the same university - the same clubs, and are of the same mind-set as the political ruling elite. This prevents them from being an independent judiciary. I do not mean that they are corrupt. It is just that they are out of the same establishment mold, and that is the reason why they make the sort of rulings that they do. They are annoyed when editors will not join this club, when we will not play the game. But I have to say to you today that membership of this club does not appeal, and I do not wish to apply. I would like to see a Bill of Rights in the United Kingdom. Failing that, the European Human Rights Convention should be written into British law.

The ruling elite itself in Britain thinks that information should be handed out at its discretion. This attitude is just the opposite of that in the United States. In the United States, all information is made available unless there is very good reason why it should not be. In Britain, no information is made available unless the ruling elite decides that it should be, and they get very angry when newspapers like mine and others attempt to get information out that they do not want distributed. It is very much a paternalistic, "not in front of the children" attitude. It goes back a long way. James Madison, in his report to the Virginia Assembly in 1798, speaking of America, said that the people, not the government, possessed the absolute sovereignty in this country. This form of government was altogether different from the British form, in which the Crown was sovereign, and the people were subjects. That attitude still exists today.

The final problem is the government itself. Any government - and, in many ways, particularly in economic policy, I am an admirer of the Thatcher government - that has been in power for almost 10 years begins to behave in a number of authoritarian ways; it begins to have bad relations with the press, and it begins to get touchy if it cannot have its own way. This will get worse, not better.

So, in Britain, the battle for press freedom continues. I do not wish to be too gloomy because the British press is dynamic; it is competitive; it is diverse; it is profitable; it is capable and can afford to fight the hard battles ahead. Because I am in the United States, however, I would like to appeal for some help and inspiration from this side of the Atlantic.

In the realm of ideas, my country has done much to contribute to the freedom of speech in this country. John Locke and David Hume gave a lot of the philosophical basis of democratic government in this country. Adam Smith, who wrote his Wealth of Nations at my old university in Scotland, provided the free enterprise principles upon which your prosperity is based. Our common law is your common law. You have the Constitution; we have the Magna Carta. Now, not for the first time in this century, the old country needs a little help. We need some guidance. We need some advice. We need some inspiration. Come over and tell us about the freedom of the press in the United States and the benefits that flow from it. Come over and come on television and radio and write for our newspapers about how some of the things the British government is trying to do would be impossible in the United States and how some of the behavior of the British newspapers would shame any self-respecting U.S. newspaper. We need to shame our authorities into change. We need all the allies we can get.

Last year you were addressed by a very brave man who had just been released from a Russian prison. This year you are being addressed by an unbrave man, who could be heading for a British prison. I am sure that Her Majesty’s Pleasure would be preferable to KGB hospitality. It is, however, an experience that I would rather forego. We look to the United States as the source of inspiration for what a free press should be all about. Help us.