The House of Lords decision I discuss below rejected a free speech claim brought by an animal rights group, but in the process reasoned this way (paragraph break added):
In the present case also the proposed advertisement is wholly inoffensive, and one may be sympathetic to the appellant’s aims or some of them. But the issue must be tested with reference to objects with which one may not be sympathetic.
Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.
Now I can sympathize with a judge who is just trying to point out that the free speech claim could be raised as to controversial speech as well as less controversial speech — or even trying to point out to liberal readers that the law would apply to conservative speech as well as liberal speech. But is it just me, or is there a pretty distinct tone of personal disapproval with regard to the examples?
The right to bear arms, in the example, wouldn’t just be raised by someone; it would be raised by “so-called patriotic groups.” “So-called” in this context sounds pretty pejorative, no? The multi-national companies wouldn’t just be expressing their views; they’d be seeking to “thwart or delay action,” again seemingly something of a pejorative characterization (though not as clearly so as “so-called,” I think). And all this speech would be “a real danger.”
Now naturally the judges are entitled to their own views about the merits of those who would support the right of the citizens to bear arms. But this just highlights my point, I think: The approach the court upholds, while ostensibly aimed at equality and “level[ing]” “the playing field of debate,” simply entrenches elite opinion. Elite judges are worried about “so-called patriotic groups” and attempts to “thwart or delay action.” I expect that opinion among the broadcasting elites includes the same or similar prejudices. Groups with outsider views can only get into the broadcaster programs with the broadcasting elite’s permission; and when they try to pay money instead, the political and judicial elites keep them from doing that, all in the name of leveling.
And one more thing, why just in countries outside the Council of Europe? Wouldn’t citizens of the Council of Europe — even “so-called patriotic groups” of such citizens — be entitled to argue for the right to bear arms, at least if the law allowed them to spending money for such “danger[ous]” activity?
UPDATE: Commenter Virginia reminded me of a passage that also struck me, but that I then forgot to stress in this post:
Nor is [a level playing field of debate] achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious.
What’s this with “progressive minds”? Is there some good justification for the judges to treat “attractive to progressive minds” as parallel to “true” or “beneficial,” which is to say to assume that a “progressive mind” is good and a mind that’s skeptical about progress is bad? Or is “progressive mind” in Britain a term that’s unrelated to politics, and equally applicable to left-wing minds and right-wing ones? (I recognize the latter might well be possible; please let me know if it is indeed so.)