One of the more ‘elegant’ ways of restricting freedom of political speech and academic freedom is to use libel and defamation laws. It has increasingly become the weapon of choice of various political actors and regimes. Nobody would gainsay that academics may libel others and that politicians can be libelled and have the right to have their names and reputations vindicated. But, in my view, the proper forum for such is a civil court in an action between individuals. Even then, excessive legal costs and outlandish damages (the UK is notorious for such) may produce an unwarranted chilling effect.
It becomes particularly alarming and at times pernicious when a libel or defamation allegation for statements made in the arena of political contestation is transferred from a private civil action to a public criminal one. To be subject to the opprobrium resulting from a criminal conviction as well as criminal sanctions raises the stakes by several registers and the chilling effect risks becoming a freezing effect.
The fact that countries with impeccable democratic credentials like France regularly use the criminal law in this manner does not kosher this particular pig. EJIL and its Editor had to stand trial for criminal defamation defending academic freedom. It was not pleasant.
Where it is used, we expect courts to understand the huge stakes involved and whilst affording protection to reputations unjustly sullied, not allowing themselves to become complicit in undue restriction of academic freedom and freedom of expression in the political arena, the life breath of democracy.
Robust political contestation necessitates a wide latitude to ‘words which offend’. I have googled, to give by one example, the expression “bunch of criminals” – producing over one million hits. It, or similar broad brush expressions, have been used endlessly to, say, characterize the White House, the Netanyahu government, the British Labor Party and other political bodies with understandable impunity as part and parcel of the aforementioned robust political contestation.
Wojciech Sadurski, is a renowned professor of public law, well known to readers of EJIL and ICON (he is, inter alia, a Council member of ICON-S and Board Member of ICON, the sister journal of EJIL). He has been a colleague of mine in more than one institution and, full disclosure, a friend of many years despite our several intellectual and academic disagreements (Wojciech articulated some of the sharpest criticism of my book A Christian Europe, to give but one example). He is a critic of the current government of his native Poland, some would say an outspoken critic, and author of Poland’s Constitutional Breakdown published this year by OUP.
Recently he stood trial for libel in Warsaw. I thought it would be of interest to interview him for our readers.