Spring Martlet 2017

FELLOW IN FOCUS
DR JACOB ROWBOTTOM
Tutorial Fellow in Law and Associate Professor of Law in the Faculty of Law, University of Oxford
restricting dishonest campaign statements
enacted? Several years ago, I looked at the
problem of lies in election campaigns and
found strong arguments that the right to
free speech does not extend to knowingly
false statements. The difficulty is that legal
solutions can bring more problems. A law
is likely to restrict only the most obviously
false statements, and in any event there are
constitutional difficulties in allowing judges
to adjudicate on the merits of campaign
statements. In a democracy, it is the people
who are the final judges of competing claims.
Jacob Rowbottom holds a BA in
Jurisprudence from Oxford and an LLM
from New York University School of Law. He
was previously a University Lecturer in Law
and Fellow of King’s College, Cambridge.
He is a qualified barrister and worked on
the staff of an election campaign for the US
Senate. His research interests include media
law, freedom of expression and the legal
regulation of the democratic process. He is
the author of Democracy Distorted (2010)
and writes on a range of topics including the
funding of political parties, media regulation,
speech on the internet, election campaigns
and obscenity laws.
In 2014, the Supreme Court judge Lady Hale
described free speech as ‘the foundation of
any democracy’. The reason, she said, was that
without free speech the people would not
know who to vote for, or whether to support
government actions. The basic idea underlying
her view is that the free exchange of ideas
is essential for people to acquire political
knowledge. The US philosopher, Alexander
Meiklejohn famously said that free speech
should aid ‘wise’ decisions in a democracy.
The ideal of the informed citizen that
underpins the classic democratic argument
for free speech has long been viewed
skeptically, especially with regard to standards
of truth in both political campaigns and
media reporting. The quality of debate in
the US presidential campaign and in the
2016 UK referendum on EU membership
was often said to be evidence of ‘post-truth’
politics. Both campaigns consisted of high
levels of emotional appeals, often descending
into abuse, and the use of often dubious
factual claims.
Why has our democracy taken this turn?
One view is that a general disillusionment
with traditional politics has been building
for some time. Another possibility relates
to the rise of social media. When content is
filtered through recommendations by friends,
or is based on past reading history, there is
a danger that people simply listen to those
that are like-minded. Such filtering leads to
an ‘echo chamber effect’ in which existing
views are reinforced, rather than challenged.
Another problem lies in the ability to
assess information. The political issues being
debated may be complex and not all the
facts may be accessible to the public. In
these circumstances, when presented with a
multitude of conflicting claims, each disputing
the other’s versions of events, it becomes
difficult to decide which side to trust. It is
hardly surprising then, if people resort to
gut instinct when casting their vote, which is
troubling for the ideal of the informed citizen.
Does this mean the ideal of free speech
should be devalued and more laws
One alternative is to say that free speech
is valued for letting people have their
say and participate in the democratic
process, regardless of whether that leads
to well-informed or wise decisions. In this
view, freedom of speech is important
in recognizing the status of citizens as
responsible and autonomous agents.
Although this is a compelling argument, it
does not justify dishonest and manipulative
statements, which undermine the process of
autonomous decision-making.
Another option is to maintain the ideal that
free speech can lead to better informed
citizens, while looking critically at how the
communications system works. There is
nothing natural or inevitable about the
current news values or the algorithms used
in the digital media. However, both have a big
impact on how information is communicated,
received and interpreted. The challenge is
to look for ways to ensure an informational
environment that better serves the needs
of citizens. This does not mean censorship,
but strategies to hold the media and digital
intermediaries accountable, and promote
fairer election campaigns. Some respond
that such a task will inevitably fail, and those
warnings should be taken seriously. However,
it is still relatively early days for the digital
media, and the current problems should not
be allowed to undermine the right to free
speech, a right that has been a defining part
of western democracies.
34 THE MARTLET | SPRING 2017