How the ace of trumps failed to win the trick

Res Publ[ca Vol.I no.2 [1995]

H O W THE ACE OF TRUMPS FAILED T O WIN THE TRICK

by

EMILIOS A. CHRISTODOULIDIS* and WILSON F INNIE**

Introduction

One strand of the argument over the need - - or lack of it - - for a Bill of Rights for the U.K. is that those rights which in other countries find expression in an entrenched Bill of Rights are already recognised in this country by the Common Law; and indeed, while not entrenched in the sense of prevailing over contrary legislation, are accorded a powerful role in shaping more superficial legal rules. 1 If this is true of fundamental rights in general, we should expect it to be most strongly the case for freedom of expression which, as its "preferred" status in United States Constitutional law recognises, 2 is in a way the most fundamental of fundamental rights, as its denial is self perpetuating (hence the ~'ace" of trumps in Dworkinian parlance).

Claims that this is the case are in fact commonly made. For example, Barendt concludes his account of the status of the right in Britain on the optimistic note that "the freedom of speech principle may play a de- cisive role in dissuading the courts from developing new rules of law or exercising discretionary powers in a novel way". 3 In a recent paper, Raz, too, writes that "constitutional judicial review is but one possible institutional expression of the right to free expression. A strong corn mon law

* Lecturer in Jurisprudence, University of Edinburgh. ** Senior Lecturer in Public Law, University of Edinburgh, 1 See e.g.T.R.S. Allan, "Constitutional Rights and Common Law", Oxford

Journal of Legal Studies 11/4 (1991), 453-480; Hon. Sir John Laws, "Is the High Court the Guardian of Fundamental Constitutional Rights?", Public Law 59 (1993), 79; Rt. Hon. Lord Browne Wilkinson, "The Infiltration of a Bill of Rights", Public Law 397 (1992), 410.

2 First encountered in the famous fourth footnote by Chief Justice Stone to U.S.v. Carolene Products Ltd [1938] 304 U.S. 144; see further J.E. Nowak and R.D, Rotunda, Constitutional Law (Minneapolis/St Paul: West Publishing Co, 1991, 4th ed.), 941-942.

3 E. Barendt, Freedom of Speech (Oxford: Oxford University Press, 1985), 30.

132 EMILIOS A. CHRISTODOULIDIS AND WILSON FINNIE

tradition is another, equally viable institutional framework for the right"~l __ "if only in principle", as he hastens to add in a footnote.

This paper goes some way towards deflating such optimism, at least as regards the existing effectiveness of common law protection. It exam - ines in detail the treatment of a highly political piece of protest and demonstrates one structural failure of a legal system without explicidy proclaimed rights, namely the law's ability to dispose of a case raising acute civil liberties issues as merely an exercise in interesting legal techni - calities, and to do this without any reference to the civil liberties issues themselves. 5

The Sheridan Case

In 1987 Parliament passed the Abolition of Domestic Rates etc. (Scotland) Act. With effect from the financial year 1989/90, this altered the system of taxation to pay (together with a subvention from central government) for local government. The old system of "rates" on domestic property, at a rate dependent upon an admittedly highly artificial valuation of the property, was abolished and replaced by a fiat rate tax on every adult: the Communi ty Charge, universally known as the "Poll Tax". Thus a tax which bore at least some relationship to the value of property owned, and hence ability to pay, was replaced by one which took no account whatsoever of personal financial circumstances. In

j. Raz, "Free Expression and Personal Identification", Oxford Journal of LegalStudies 11/3 (1991), 303-324. In fact a very common structural failure. See for example the comments of the Lord President (Dunedin) in McAra v. Mags of Edinburgb [1913] S.C. 1039 (concerning the validity of a proclamation forbidding meetings in a particular street): "Now the right of free speech no doubt exists... But the right of free speech is a perfectly separate thing from the question of the place where that right is to be exercised" (the latter being a matter of "ordinary" legal construction). Likewise in Duncan v. Jones [1936] 1 K.B. 218 (validity of police order to desist from public speaking likely to provoke a breach of the peace) Lord Hewart C.J. said, "there have been moments during the arguments in this case where it appeared to be suggested that the court had to do with a grave case involving what is called the right of public meeting. I say 'called' because English law does not recognise any special rights of public meeting for political or other purposes." Likewise Humphrey J. insisted that "IT]he sole question raised by the case is whether the respondent, who was admittedly obstructed, was so obstructed when in the execution of his duty."

HOW THE ACE OF TRUMPS FAILED TO WIN THE TRICK 133

Scotland, with its very high Labour Party support, the Poll Tax was exe- crated. Further outrage was caused by the fact that the new system was introduced a year earlier in Scotland than in England. Large numbers of people refused to pay the tax by allowing themselves to cease to exist of- ficially (inter alia by disappearing from the Electoral Register). Local government was loath to use its full powers to collect. The Labour Party alienated many traditional supporters by its insistence on the principle that even a hated law must be complied with until changed and its rejec - tion of extra-Parliamentary politics.

This background brought to fame a young political activist named Tommy Sheridan. A supporter of the Militant Tendency (a Trotskyite "entryist" sect) within the Labour Parry, he became Chair of the Scottish Anti Poll Tax Federation, a body which eschewed what it saw as the passivity of the Labour Party leadership in favour of direct action against the enforcement (or enforcers) of the tax. This led, in 1992, to the legal confrontation in Mdntyre and Others v. Sheridan. 6 By late 1991 the fail - ure to collect the Poll Tax had accumulated arrears of hundreds of rail - lions of pounds and local government across Scotland had resolved to use draconian measures. In particular they had begun to use the proce- dure of "warrant sales" (sales of goods "poinded" by Sheriff Officers [bailiffs in English law] on the authority of a warrant to enforce a court order to pay a debt) to collect arrears of tax. The proclaimed aim of Sheridan and his supporters was physically to prevent such sales taking place.

A warrant sale was due to take place at 1 t a.m. on October 1st 1991 in an enclosed yard owned by Strathclyde Region. In anticipation of trouble McIntyre and other Sheriff Officers who were to conduct the sale obtained interim interdict (in English law a "temporary injunction") from Lord Caplan against Sheridan. It "[I]nterdict[ed] the Respondents ad interim or anyone on their behalf (l) from attending the warrant sale at Strathclyde Regional Council premises at Turnbull Street, Glasgow, on 1st October 1991; (2) from disrupting, impeding or otherwise interfering with the day-to-day business of the Petitioners or their agents or em ployees and the carrying out of their lawful duties, in particular the execution of the said warrant sale; and from encouraging or instructing the Inverclyde Anti Poll Tax Union or anyone else to do so".

28 January 1992 (O.H., Lord Caplan) available on Lexis; 1993 Scots Law Times 412 (Second Division). Unless otherwise specified, all further quotations are from this source.


The sequence of events as established to the satisfaction of Lord Caplan in subsequent proceedings was as follows. The goods to be sold were in a van in the yard. At about 9.50 a.m. 30-40 people came into the yard, banged the van, let down its tyres and appeared to be about to overturn it until the driver moved it between two pillars. Police entered the yard, separated the crowd from the van and restored order. At this point Sheridan entered. There was sporadic chanting of protests against the sale and invective hurled at the Sherif Officers. On a number of oc - casions Sheridan, and he alone, stood on a platform and addressed the crowd. He said: "We would appeal to the Polis not to protect these people."7 At another point he held up a piece of paper claiming that it was the interdict and explaining what it was for, then tore it to pieces which he scattered. In one speech he said: "as far as we're concerned there will be no sale". He conferred with members of the crowd who appeared to be active in the demonstration. As the time for the sale approached "some members of the crowd began again to concentrate their attention in the direction of the van and the mood of a section of the crowd became distinctly more menacing". The Sheriff Officers con- suited with the police who told them they could prevent murder but couldn't guarantee that no injury would occur if the sale proceeded, whereupon it was cancelled. After the cancellation Sheridan addressed the crowd, saying, "When this van goes out of the yard we're prepared to go out of the yard." He then approached the police and said he could arrange for the van to be allowed to leave but the van must go before the crowd. At his bidding the crowd cleared a path, the van left and the crowd dispersed. The Sheriff Officers then brought these events to the notice of Lord Caplan, alleging contempt of court by Sheridan for breach of interdict. In evidence Sheridan argued that he was attending in a personal capacity, not as Chair of the Anti Poll Tax Federation. He personally had not touched the van. He had not called upon the crowd to stop the sale ("I said nothing as specific as that"). He was not going to play "a key role" in any interference. "In essence his position was that his attendance and activities at Turnbull Street were simply a legitimate, political protest." His counsel argued that as the sale was not due to start until 11 a.m. but was cancelled at 10.55 he could not be said to have attended it. In relation to the remainder of the interdict, counsel argued, Sheridan had not impeded the Sheriff Officers. To show breach

7 As quoted supra n.6, from which is also derived the summary of events in the text.


of interdict it was necessary to prove that he had personally intervened in a physical fashion. Others had thus physically impeded the officers but Sheridan had not and the others would have done so irrespective of his presence. Counsel for the Sheriff Officers argued that the terms of an interim interdict should be read "in a practical way and not like a Deed of Entail" 8 and that Sheridan had clearly breached all aspects of the interdict so construed.

Lord Caplan was prepared to see merit in counsel's arguments over whether Sheridan could be said to have attended the sale. He attached no importance to this overall, however, because Sheridan's "actions ... amounted to a flagrant and calculated breach of interim interdict". He found "no difficulty in deciding that the respondent impeded and interfered with the petitioners' representatives as they carried out their lawful duties". He rejected out of hand the argument that Sheridan needed to have physically impeded the Sheriff Officers in order to be in breach of interdict since one "impedes or interferes with Sheriff Officers if one does anything calculated to obstruct the conduct of their lawful activities". 9 At the close of his opinion Lord Caplan, in implicit rejoinder to Sheridan's depiction of himself as engaging in legitimate political activity, observed that "in a democracy such as ours there are many forms of political protest which are available but ignoring Court Orders and obstructing Sheriff Officers are not among them". A sentence of six months' imprisonment was imposed.

Sheridan reclaimed (appealed in English Law) and his case was heard by the Second Division. Essentially there were two heads of appeal. First, that on the true construction of the terms of the interdict he had not breached it, because he did not himself physically impede the Sheriff Officers nor did he in the speeches he made instruct or encourage others

8 H. Burn Murdoch, Interdict in the Law of Scotland (Glasgow: Hodge, 1933), 456 (not 454 as reported in the Lexis transcript of Lord Caplan's opinion). By the late 18th century there was a consensus that entails were against the public interest. Since, however, their creation was recognised in principle by an Act of 1685, the only way of maintaining the public interest was by applying very strict (indeed sophistical) canons of construction against words or deeds purporting to create entails. See R. Burgess, Perpetu#ies in Scots Law (Edinburgh: Stair Society, 1979).

9 Supra n.6. Yet "to obstruct" is not itself crystal clear. The offence of obstructing a constable in the execution of her or his duties (Police (S) Act 1967 s.41) can (in Scotland, though not in England) be committed only by physical obstruction - - Curlett v. McKechnie [1938] J.C. 176.


to impede them or interfere in their day-to-day business; and, second, that even if he were guilty the sentence was too heavy, bearing in mind the non-physical nature of his involvement, the crowd's non-interference while he was present and his right lawfully to express opposition to warrant sales. The Court refused the reclaiming motion. As to the first head the Court reminded itself that, presumptively, words should receive their normal meaning; and then resorted to the Oxford English Diction- my to find ample evidence of non-physical meanings ascribed to the words "interfere", "impede" and "obstruct". They went still further though, deciding that on the evidence the Lord Ordinary would have been entitled to find that there had in fact been physical interference, since Sheridan had arrived at the close of the period when the crowd was behaving violently towards the occupants of the van and had immediately assumed leadership of it. In short, the Court agreed that there had been a "flagrant and calculated breach" of interdict. Nor could the Court be persuaded that six months' imprisonment was excessive. Far from the lack of direct involvement meriting a reduction, a heavier sen - tence would have been called for if Sheridan had been directly involved in "the serious violence directed against the Sheriff Officers at the begin - ning of the incident".

After the failure of Sheridan's appeal there occurred a further curious incident which fuelled the fears of those who looked upon what he had done as legitimate politics and upon him as a political prisoner. Having taken counsel's opinion, Sheridan applied for civil legal aid to apply for the recall, or at least narrowing of the terms of, the interdict, part of which would still operate against him on his release from prison. His application was rejected by the Scottish Legal Aid Board in these terms. "Whether or not there is something in terms of law to say about the terms of the interim interdict, it would appear that the applicant is only concerned in this matter in as much as he would apparently wish to en - gage in political protests which might be in breach of the interim interdict as it stands. It would cause the applicant no personal prejudice to comply with its terms and if he wishes to engage in expressions of personal opinion which might conflict with it, then that is not an appropri - ate reason for litigation to be funded at public expense." 10 This stung Sheridan's solicitor to the unusual step of denouncing the Board's ac-

10 A. Miller, "The Legal Rights and Wrongs", The Scotsman, 2nd May 1992, from which all quotations in the following paragraph are taken.


tions in a newspaper article. 11 "The forum", he wrote, "for adjudication upon whether or not there

is something in law to say about the terms of an interim interdict is, in fact, a court of law and the function of the court should not be usurped by the [Legal Aid] Board". The reason offered for this "departure from due process" by the Board amounted to "quite simply a flagrant denial of freedom of speech. A citizen has the right to engage in political protest whether or not [sic] the citizen's name is Tommy Sheridan or Joe Soap. The question of political protest is, of course, an extremely sensi- tive area of the law in a democracy. It is vitally important, therefore, that where such an issue is at stake, the relevant matters be fully venti- lated in a court of law and not decided by a body which is itself un- elected and, in real terms, virtually unaccountable."

In the meantime, however, Sheridan's supporters had formed their own party, Scottish Militant Labour, and a few days after the events just narrated, at the District Council elections, Sheridan and another S.M.L. member were elected to Glasgow District Council. Next day, at a press conference at Saughton Prison in Edinburgh, Sheridan declared, "I am a political prisoner. I have been given a savage sentence, I've been vic- timised for opposing the Poll Tax. The Scottish Office, now I am a councillor, should recognise those things and release me immediately." 12

Why Not Freedom of Speech? The Case of a Non-Dilemma

In his early work, Taking Rights Seriously, Ronald Dworldn introduced the notion that rights should serve as "trumps". 13 They" would perform that function by vesting in the individual right holder the power to outweigh competing collective goals and interests. In questions of freedom of speech, mote specifically, the citizen's right to be heard trumps the State's competing interest in restricting speech, whether on grounds of preserving public order or (perhaps more appropriately here)

11 12 13

Supra, n.10. "'I'm a political prisoner', says Sheridan", The Scotsman, 9th May t992. R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), xi: "Individual rights are political trumps held by individuals." See also his "Rights are Trumps", in J. Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984), 153: "Rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole."


of curbing opposition to governmental policy. According to Dworkin, that is to say, freedom of speech overrules prima facie valid restrictions on the right to speak. These primafacie valid restrictions assume a vari- ety of forms, but the one Dworkin predominantly has in mind is that of restrictive legislation. Freedom of speech, then, entrenched at the constitutional level, trumps the State's interest in restricting it.

There is surely some difficulty in translating the argument directly into the U.K. context. While Dworkin's argument appears apposite to jurisdictions such as the U.S. with its entrenched Bill of Rights, the status of the right to free speech as mere principle in common law blurs the picture considerably. Difficulties are accentuated by the fact that Dworkin passes over the particularities of jurisdictions and assigns trumping force to rights across the board. While his theory is more or less descriptive of the state of affairs in the U.S. constitutional regime, it appears as a mere idealisation of the situation in Britain and the specific vulnerabilities of civil liberties, such as freedom of expression in common law jurisdictions, are not accounted for. The Sheridan case presents a test case for precisely these vulnerabilities. Where the r i g h t - as a common law principle - - presents only an (albeit strong) presumption against any infringement, a great deal depends on the judicial under- standing of its importance. Institutionally no trump then, but how good was the hand?

Let us take a step back, here, from the particularities of the U.K. position, and engage with the question of freedom of speech at a more fundamental, theoretical level. Almost invariably, the starting point of civil liberties literature is the perennial problem of judicial review, the question of how to reconcile the democratic will of the people as expressed in the representative arena (Parliament) with the democratic will of the people as expressed in the Constitution, when these clash. A sub - sequent question is whom to entrust with the protection of the right in question. In Britain the demand for a Bill of Rights has brought to the fore a fierce debate over the pros and cons of allowing the courts juris- diction over constitutional questions. 14

Fortunately for the judges in the Sheridan case, they did not have to

14 For Dworkin, of course, it is axiomatic that judges are the appropriate mechanism for reconciling or choosing between these two expressions of popular will. He renews his confidence in the judicial office in his recent Life's Dominion: An Argument about Abortion and Euthanasia (London: Harper Collins, 1993).

HOW THE ACE OF TRUMPS FAILED TO WIN THE TRICK t39

deal with such questions. There was, happily, no tension here between elected and non-elected bodies; no need to overturn an instance of the will of the people. The judges were dealing with no statute but with a mere order issued by a Court. Had the judges wished to uphold the common law principle of free speech they would not have trumped a primafacie valid restriction backed by the legitimation of a majority in Parliament; all they would have trumped would have been the decision of another, lower, Court. All this, however, remains hypothetical. Neither this, nor any of the other problems involved in civil liberties adjudication, were ever allowed to surface. The important question that would have allowed them to surface was carefully avoided: whether, that is, the defendant's incitement of the crowd merited protection under the free speech principle to which common law pays lip service; whether, therefore, the interdict infringed the presumptive right of expression.

Why was this question not raised? Because the primafacie valid restrictive measure in question was taken as unquestionably binding. The whole case turned on whether Sheridan's conduct was consonant with, or in breach of, the terms of the interdict. The unquestioned "constitutionality" of the latter served as the backdrop for the questions in a way that prohibited recourse to freedom of speech arguments. The status of the "right" as mere common law principle in Scotland allows it to enter only the balancing process involved in interpretation. The strik-. ing feature of the Sheridan case is that the need itself to balance compet - ing legal considerations and arguments stemming from the right to free speech is screened off. The inquiry is narrowed down a priori to the technicalities of breach of interdict. And once the connection to the broader context of freedom of speech is severed, the major interpretive questions that arise in the case, questions of what constitutes lawful or unlawful interference, of how far the principle can be stretched in that respect, etc., are made to appear as technical or commonsense ones. To the extent that the operative assumptions behind the Court's reasoning, the severing and the narrowing, are kept latent, one can talk of a discur - sive strategy on the part of the Court. We shall isolate and discuss three stages in that strategy which screened off the substantive issues of the case. First, the judicial inquiry is reduced solely to the question of breach of interdict. Second, this focus relieves the Court of any inquiry into the constitutionality of the interdict itself, in so far as it prohibits the respondent from "encouraging or instructing" the undertaking of unlawful action. The question of what constitutes "lawful opposition" is


prejudiced (or prejudged). Third, the narrow focus on breach of interdict, in turn, has the further, and more subtle, consequence that questions of interpretation which would have to be dealt with within the "freedom/restrictions" framework are treated as technical ones through context displacement.

Let us consider the first stage. At no point was the case treated as relating to freedom of speech. The whole issue was screened off by the narrower focus on breach of interdict. It is quite surprising that both sides were willing to play along with this narrowing of focus, the screen- ing off of the large issue. On the one hand, the Inner House concluded that they were fully satisfied that the first instance judge "was fully enti- tied to conclude that there had been breach of interdict" and, in the words of the Lord Ordinary, "a flagrant and calculated" one at that. Not once did the Court ask whether the interdict itself was an abuse of jud i - cial power because of the excessive limits that it placed on the liberty of political protest. On the other hand, the defence appeared content that the focus be circumscribed to the fulfilment of the conditions laid down by the interdict. The Lord Ordinary "entirely accepted" the defendant's right to "political protest", but it would have to be "subject to the terms of the interdict" and there is no suggestion that in so stating he was re- futing any argument by counsel for Sheridan. The interdict demarcated the outer limits of everything legitimate; it set the context within which alone opposition was to be voiced. By fixing a context one fixes a framework that informs what can be asked. Specific possibilities of ob - servation are furnished. 15 The context itself remains the "natural" set- ting for asking questions and can itself be scrutinised only if it is in turn set within a different, broader context. In our case the narrow context is breach of interdict, the broader one freedom of speech. The repercus- sions of the choice of context carry all the way down to questions of interpretation of even simple terms, as we shall see below, when we consider the third stage.

To turn to the second stage: in concluding, the Court acknowledged that "we entirely accept that the first respondent is entitled to express lawfully his opposition to the use of warrant sales ..." (emphasis supplied). This is possibly the only direct engagement of the Court with the question of free s p e e c h - even if by default, by evading the difficult question, Is it also lawful to encourage others to engage in unlawful ac-

15 On context-dependent observation and blindspots, see N. Luhmann, Ecological Communication (Cambridge: Polity Press, 1989), 23ff.


tion? Does this encouragement or instruction, too, fall under "lawful expression" of one's opposition? It is no exaggeration to say that this question forms the backbone of freedom of expression literature. Thumbing through any of the American law reviews is bound to bring up a reference sooner or later to the limits of the freedom of expression. The most delicate question about those limits has to do with the protection of subversive speech. And while questions of the protection of forms of speech like libel, pornography, as well as commercial speech and artistic expression when these appear offensive, or otherwise objec- tionable, are mor e neatly dealt with, subversive speech (broadly understood to include subversive expressive behaviour) of the kind described by such terms as "inflammatory", "fighting words", "verbal violence" and "incitement" is more difficult to deal with. The criteria by which criminal liability is attached to communication have often been recast and a multitude of categorisations of expression proposed, drawing on the content, context or effects of speech. 16 If the utterance is recognised as political, the classifications are forced into yet other variations, almost invariably lifting the utterance into Cardozo's "preferred position 'q7 of protection. Placed on the political dimension of the constitutional plateau, the question becomes whether the right to urge political change may transcend what the Constitution envisages as the means for, and limits of, change. And while the form of political expression itself is le - gitimate, the means advocated are not. Punishing subversive political speech involves shifting the locus of liability from the forbidden action advocated to the permitted advocacy itself. It places the locus of liability one step back to a primafacie permitted form of behaviour. The question is whether this shift is itself constitutional.

It is for precisely these reasons that the terms of the interdict may be seen to infringe the defendant's right of free speech. To "encourage or instruct" are instances of speech; the context in which the defendant's words were uttered indubitably made them instances of political speech

16 Here it is worth mentioning passim K. Greenawalt's recent interesting classification scheme in Speech, Crime and the Uses of Language (New York: Oxford University Press, 1989). Greenawalt (following J.L. Austin) suggests as the significant distinguishing criterion whether the speech act in question has locutionary force, whether, that is, it merely descriptive of a state of affairs or attempts to have real effect(s) on that state of affairs.

I7 Justice Cardozo introduced the formulation, which is now trite, if controversial, constitutional law in the U.S. (vide supra n.2).


and thus merit special protection. Should the expression of political opinion ever be curtailed? A strict commitment to the right would trump the imposition of limits.

Incidentally, it appears to be the case that the tearing up of the interdict weighed heavily on the decision to punish and the severity of the penalty. It was this action that was seen most to jeopardise order. Tearing up the interdict was identified as signalling defiance to nothing less than "the rule of law" itself. There is no reason why this action should be given any particular weight. Described in terms of "symbolic speech", "expressive activity", etc., it is by now a widely held, if highly controversial, doctrinal assumption in more mature constitutional legal systems that the category of protected communication is not limited to propositional information, but extends to cover action such as tearing up interdicts that is undertaken with a view to conveying a message. In the U.S. this was recognised in principle as long ago as 1931 in Strombergv. Califlbrnia, 18 although not all conduct intended to express an idea merits First Amendment protection: burning a draft card, for instance ( U.S.v. O'Brienlg). The greatest controversy in the U.S. centres on symbolic desecration of the national flag 2° (although "symbolic speech" last arose for consideration by the Supreme Court in the context of nude dancing as entertainment). 21

The protection of subversive speech is the litmus test of liberal con- stitutionalism. In view of their previous record it is not surprising that the Scottish Courts failed it. The law often gives preference to other values (e.g. protection of public order 22) over freedom of expression. What is surprising is that the Court never even allowed the dilemma between free speech and public order to surface. The Court avoided the dilemma by simply suppressing the question. As G. Robertson wrote in his discussion of public protest in Britain, "... the citadel of capitalism may not be deaf to the voice of protest - it is just not permitted to hear it". 23 The exclusive focus on breach of interdict screened off the obvious

18 [1931] 283 U.S. 359. 19 [1968] 391 U.S. 367. 20 [1989] 491 U.S. 397. 21 [1991] 115L. Ed. 2d504. 22 For a spectacular example see the Criminal Justice and Public Order Act

1994. 23 G. Robertson, Freedom, the Individual and the Law (Harmondsworth:

Penguin, 1989, 6th ed.), 69.


dilemma concerning the "lawful expression of opposition". The question of what const#utes lawful expression is denied the crampons needed for the slippery slopes of subversive speech and instead confined by slippers to the homely domesticity of the law of breach of interdict.

Finally we come to the most subtle move of all: the Court establishes the breach of interdict by a broad interpretation of its terms, an interpre - tation that impedes the most restrictive reading of the principle of freedom of expression.

While any question of the definition or limits of the right to free speech is formally excluded by the choice of focus (see above) substantive recourse is made to it through interpretation. But the manoeuvre of ex- cluding it at the formal level allows the Court to treat these questions as merely technical. The dilemma inherent in imposing limits on speech is marginalised; instead questions of interpreting the terms of the interdict are left to the dictionary and a choice among the options there treated as ordinary legal practice, legal "common sense". This requires some further elaboration.

The question of whether the defendant was in breach ultimately turned on the definition of the words "interfere" and "impede", in which terms behaviour was proscribed in the interdict. The defendant's behaviour could be shown to be in breach only if he could be shown to have "interfered" or "impeded". "The word 'interfere'," the Court con - tended, "should be given its ordinary and natural meaning" which divorced it from the "physical element" and therefore included the use of verbal expression. (It is characteristic that the Court is never entirely confident in this broader approach and strives to establish "nonetheless" some physical interference of the defendant even if that means "mere at- tachment to the crowd", and despite this being "towards the end of the stage when the crowd was behaving in a violent manner".) "In any event", though, "even i f his involvement could properly be categorised as non physical, what he did was to commit a flagrant and calculated breach of interim interdict" (emphasis supplied). The Court's insistence on ascer- taining the "ordinary or natural meaning" of "interfere", "impede" and "obstruct" is in tune with the rule in legal reasoning that one who calls for departure from "ordinary" meaning definitions carries the burden of explaining why this should be the case. In the absence of any such reason for departure (and isn't that absence obvious!) the Concise Oxford Dictionary will solve the dilemma. After all, the taw is not the property of experts but is open to all dictionary users. Yet, as philosophy has long


taught us, meaning is not independent of context. "Natural meaning" is not an absolute quality: what the "natural meaning" of "interfere" or "impede" is, depends on the framework in which we are locating our inquiry. As regards the judges' finding, it is misleading to designate one of the definitional options as "natural" in absolute terms: but more impor- tantly, the judges could designate the broader rather than the narrower definition of the terms in question as natural only through context displacement. Only because they are not treating the question within the framework of the freedom of speech dilemma (see above) can they de- cide that the broader definition is natural. If, however, they had taken into account the existence of a competing rationale calling for a restriction of restrictions they would have reasonably characterised the narrower option interference as physical o n l y - as natural. They are able to avoid this dilemma, however, by having screened off the higher order question of the choice of context. They can then prejudice the casting of the question and the consequent balancing of "broader" and "narrower". "Interfering" will then of course include verbal expression and incitement. Why would it not? Any reason why it should not has been screened off. The right to free speech which would have provided such a reason is not even permitted to enter the balance. What, one wonders, can be salvaged of the right to free speech when it cannot even fulfil its role as common law principle (let alone that of trump) by being allowed at least to enter the balancing process? How this new balance would re- solve the question is another matter that would test the Court's liberal or authoritarian disposition. But such a choice was never openly made because of a d i scu r s ive - ideo log ica l - move that prevented the real political question from piercing the legal screen.

We are now in a better position to understand the discursive strategy as, precisely, a context displacement. It is a subtle strategy because it keeps hidden what is at stake; it replaces one backdrop for posing the question by another and obscures the fact that this is a choice; and it presents itself as natural by defining our alternatives from the outset v/a recourse to the "natural language" of the dictionary. There are, needless to say, great advantages to this approach in terms of legitimation. The political role of the Court and thus its political vulnerability and need for legitimation is removed if it does not deal with, or rather appears not to deal with, dangerous questions like the limits of political speech and protest. It is much easier to consider instead neutral legal questions like breach of interdict which allow expert discourse to appear


to perform a legitimating f u n c t i o n - merely by looking at the dictionary! The level at which questions are chosen is the second order level of strategy; this is the level where choices are made, while the first order level of presentation is where they are redeemed.

Conclusion

The importance of freedom of speech is surely a puzzle for liberals. 24 In a world where work, a home, even basic goods are far from guaranteed to all, the importance attributed to freedom of speech may justifiably appear a misguided priority. We can only begin to assess its important by acknowledging its central position in the constitution of the liberal public political sphere. This is an argument about the sovereignty of citizenship. Sovereignty means self government and freedom of speech underpins it in this sense: the speech of the individual citizen is the input into the formation of public opinion that realises self government. The right to speak, as input into the collective self determination, is the channel of citizenship. The connection between citizenship and free speech is really that close: in one sense it defines the democratic concep- tion of politics.

Clearly we cannot take all this at face value; the depiction of political society as a forum of public deliberation is overdrawn. The reality is less impressive than the rhetoric and "self determination" more often than not masks powerlessness. However, freedom of expression is still of value. Every society should be able to guarantee some space for diver- gence, opposition and conflict and build these guarantees into institu- tions. Where institutionalisation takes the form of constitutional en- trenchment, a claim with trumping force against state power is granted to the dissenter. 25 In a common law system the question is left to the discretion of judges: it is a fragile balance that has to be struck. To a

24 25

Supra n.4, at 303. At least prima fade. The argument over the adoption of a Bill of Rights and the effects it has upon the practice of politics in the adopting state are far more subtle in reality. For the Canadian experience see M. Man&l, The Charter of Rights and the Legalisation of Politics in Canada (Toronto: Thompson Education Publishing, 1989), or, closer to home, C.A. Gearty, "Democracy and a Bill of Rights: Some Lessons from Ireland", in K.D. Ewing, C.A. Gearty and B.A. Hepple, Human Rights and Labour Lava: Essays for Paul O'Higgins (London: ManseU, 1994), 188-220.


large extent "the 'genius' of our law" is seen to inhere in its proximity to the sense of justice the community shares, and judges have often been hailed as particularly in tune with that sense of justice. The Sheridan case brings out the irony in all this. There ought to be a place for the politics of protest in democratic societies. Pretending the issue is not there won't make it go away. Their Lordships will have to do better than that.

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How the ace of trumps failed to win the trick