A line has been crossed. They need classes in free speech at police college, says ALAN RUSBRIDGER
What, you wonder, do they teach them in police college these days? Gangs, cyber crime, forensics, public safety, drugs –there’s doubtless a lot to learn. But I would like to suggest a new and compulsory course, let’s call it The Basics Of Free Speech.
Lesson number 1. The police do not tell newspaper editors what to write.
You think this is too basic? That in 21st Century Britain no police officer would dream of telling a newspaper editor not to publish information and meekly to hand back any leaked documents to their rightful owners?
If you think that, then you haven’t been paying attention. You evidently missed Friday’s statement from one of the most senior officers in the Metropolitan Police , ‘advising’ owners, editors, publishers – along with anyone on social media – exactly what they shouldn’t publish.
ALAN RUSBRIDGER: What was Neil Basu (pictured) thinking? Does he really think it is the role of the police to start dictating what newspapers get to write about and to help identify sources by handing back leaked documents?
And you evidently missed Mr Basu doubling down last night with another statement saying it was his duty to ‘prevent crime’ by warning editors off publishing material which could be classified as secret.
What was Mr Basu thinking? Does he really think it is the role of the police to start dictating what newspapers get to write about and to help identify sources by handing back leaked documents? Did no one teach him in police college that, while journalists have never considered themselves above the law, it’s not for the cops to tell an editor how, or what, to edit?
NOR is it – except in the most exceptional of circumstances – the duty of Government. The last time this happened to me came in the form of a visitation in 2013 from the then Cabinet Secretary, the late Sir Jeremy Heywood, acting on instructions from the Prime Minister, David Cameron.
The Government did not approve of newspapers publishing leaked material about the relationship between Big Tech and intelligence agencies. ‘You’ve published enough,’ Heywood purred. ‘You don’t need to publish any more.’
There was a slight hint of menace in his voice as he added: ‘You are in the possession of stolen papers.’
I thanked him for his advice, but reminded him that it wasn’t for the Government of the day to tell a newspaper editor what was ‘enough’.
In the end, we transferred our material to the US where, thanks to Supreme Court judgments robustly defending the Constitution’s First Amendment protection for free speech, it would be unthinkable for a US Administration to behave in this way.
Of course, it’s easy to understand the frustration of both police and governments. It is always alarming to someone in authority when highly confidential material finds its way into the public domain. We can easily imagine why the police would order up a leak inquiry and move heaven and earth to find out how Sir Kim Darroch’s musings on Donald Trump ended up across six pages of The Mail on Sunday.
I also understand why governments, police forces and intelligence services might want to give specific guidance on aspects of particular individual stories.
In Britain, we have a slightly Heath-Robinson system called the Defence and Security Media Advisory Committee – a voluntary arrangement which tries to prevent inadvertent disclosure of, for instance, military operations or the safety of intelligence operatives.
But there’s a giant leap from trying to unearth a source, or giving tailored advice, to a blanket warning not to publish. A line has been crossed in a quite alarming way. A police college course on the Basics Of Free Speech might include the story of Daniel Ellsberg, an ex-Marine working as an analyst, who in 1971 leaked classified documents about the Vietnam War to the New York Times and Washington Post.
The so-called Pentagon Papers showed that the public narrative about a war which cost more than 58,000 US lives was essentially a false one. The American government of the day was furious. President Richard Nixon thought the actions of the editors was close to treason. General Al Haig, then one of his senior advisers, said it was ‘devastating… a security breach of the greatest magnitude of anything I’ve ever seen.’
Nixon – in a famous case celebrated in Steven Spielberg’s 2017 film The Post – went to court to try to stop publication. He failed. The newspapers won 6-3 in the Supreme Court. Mr Justice Black said that ‘in revealing the workings of government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would do.’
The judge added: ‘The word “security” is a broad, vague generality whose contours should not be involved to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.’
Ellsberg, now a snowy haired and avuncular 88-year-old living in California, is these day generally regarded as a hero, not a traitor. He has been garlanded with honours around the world. It’s hard to think back to the panicked mindset that, nearly 50 years ago, led to him being labelled an enemy of the state and charged under the Espionage Act – the US equivalent of our own Official Secrets Act.
I wish Mr Basu could go back to college and study the Ellsberg case, and many others like it. Instead, he seems to think it’s his duty to tell editors they could be risking prosecution under the Official Secrets Act (to which there is no public interest defence) and that it is his job to ‘prevent, as well as detect’ crime.
If Mr Basu genuinely knows of particular material which could be really damaging to public operations or safety then any editor would be pleased to receive specific guidance. But it’s really not his job to issue generalised warnings about what is, and isn’t, acceptable to publish.
That’s Free Speech 101. I’m surprised the police don’t study it any more.
Alan Rusbridger is a former Editor of The Guardian. He is now Principal of Lady Margaret Hall in Oxford and chairs the Reuters Institute for the Study of Journalism. He is the author of Breaking News: The Remaking Of Journalism And Why It Matters Now