Law for All
Bentley, David, The World Today
Law For All Eric Barendt, Freedom of Speech, 2nd edition, Oxford University Press, 2005, £75
IT IS SAID THAT LAW IS TOO IMPORTANT a thing to leave to lawyers, even constitutional lawyers. The same is true of some law books. While Eric Barendt, Professor of Media Law at University College, London, has written extensively elsewhere on freedom of speech, it is twenty years since the first edition of this book. Now there is in effect a completely new, longer, and most welcome, work.
Subjects including copyright and the right to privacy - not just the last refuge of scoundrels - previously only touched on, are treated at some length. The problems of the internet are discussed constructively.
It is one of the many virtues of this work that the various aspects of freedom of speech are kept constantly Ui play. It is tempting to describe the enterprise as Wagnerian, and not merely in its scale. At the outset are the leitmotifs, the recurring themes: the arguments for the protection of free speech, from John Stuart Mill via Thomas Scanlon to Ronald Dworkin; the scope of the term 'speech'; the general features of the law in Britain, western Europe, Australia and North America.
When Barendt treats specific topics, they reappear: the thrilling 'participation in democracy' theme, the comforting 'self-fulfilment of the individual' approach, and the warning notes that signal the entry of government. The effect is a continuing discussion as well as an exposition of the law.
If one theme runs throughout, it is that the law on freedom of speech inevitably raises constitutional issues, and must not be dealt with in distinct compartments such as the law of tort, or copyright, or public order. This is broadly the position in the United States, and for better or worse is fast becoming true for Britain.
More technical questions, for instance whether it is better to try to draw clear demarcations between kinds of speech that should and should not be protected, or whether courts should engage in a balancing exercise, are also examined - even non-lawyers will find the discussion accessible. American politicians trapped in the free-fire zone for libel cleared in 1964 by the US Supreme Court in the New York Times v Sullivan case must envy the less enthusiastic approach to freedom of the press adopted in 2001 by the House of Lords in Reynolds v Tunes Newspapers. …