You Can't Read This Book: Censorship in an Age of Freedom (25 page)

Time and again, bin Mahfouz used the law or the threat of legal action to ban books which tied him to Islamist violence. It was not that he denied the charge in its entirety. He admitted that he had given money, but said it was only when Islamists were fighting the Soviets. Writers seeking to test his assertions, and see if there were grounds for the relatives of the dead of 9/11 naming him in their lawsuits, or the US Treasury Department treating him with suspicion, were clobbered. The serial litigant did not allow any disobliging reference to him, however hedged with lawyerly caveats, to go unpunished. Terrified publishers pulped rather than run the risk of a trial.

To be fair to the ghost of the billionaire, he could raise legitimate doubts about some of the claims against him. In a normal country, an argument would have taken place, freely and in the open, about the merits of the case. But in this respect, Britain was closer to Saudi Arabia than a free country, and bin Mahfouz was a man only
Private Eye
dared write about.

The legal actions went on without a hitch – he launched thirty-three suits – until bin Mahfouz lawyers issued a writ against
Funding Evil: How Terrorism is Financed and How to Stop It
by the American author Rachel Ehrenfeld. In truth, Ehrenfeld’s was not the best book on the subject – that distinction belonged to
Charity and Terrorism in the Islamic World
, by J. Millard Burr, a former USAID relief coordinator in Sudan, and Robert O. Collins, a history professor, which the Cambridge University Press pulled to avoid a libel trial. Ehrenfeld’s case stood out because of where her book was published rather than what she said. She published in New York, not London. No British publisher bought the rights for fear of the law, and that fear denied the British public yet another book others could read. Bin Mahfouz still sued, because twenty-three copies reached Britain via Amazon.

Despite this paltry sale, the courts allowed his action to proceed, and ordered that Ehrenfeld should withdraw her book and pay him $225,000 even though bin Mahfouz was not English, Ehrenfeld was not English, and her book had not been published, publicised or reviewed in England. The imperialism of the English judiciary, its belief that it could punish books whose connection to England was virtually non-existent, finally made the world wake up to the danger London posed to freedom of speech. American writers, from leftists to neo-cons, realised that the availability of books on the Net was overriding their constitutional rights. English law ‘constitutes a clear threat to the ability of the US press to vigorously investigate and publish news and information about the most crucial issues before the US public’, said a coalition of American publishers. England was organising ‘book burnings’, added a Republican senator, not entirely hyper-bolically, because chastened publishers withdrew defamatory books from the shelves and pulped them. Rory Lancman, a stout member of the New York State Assembly, stood on the steps of the New York Public Library and began a campaign to make English verdicts unenforceable in America with a magnificent speech: ‘When American journalists and authors can be hauled into kangaroo courts on phoney-baloney libel charges in overseas jurisdictions who don’t share our belief in freedom of speech or a free press,’ he said, ‘all of us are threatened.’

Polanski Redux!

Naturally, England had no difficulty in satisfying Roman Polanski.
Vanity Fair
was an American magazine, but it sold in Britain, and that was enough to justify his action in London. There was the slight problem that if Polanski appeared at the Royal Courts of Justice to give evidence, the police would arrest him and deport him to America to face an overdue appointment with an angry judge. The judiciary spared him that indignity by saying that he did not need to give his evidence in person, but could deliver it via a video link from the safety of France. Just because he was a fugitive did not mean he was an ‘outlaw’ whose ‘property and other rights could be breached with impunity’, said the House of Lords, then the highest court in the land. Not one judge on its benches had the wit to realise that Polanski was not seeking to protect his property from theft or his body from torture, but asserting that he could still say he had a sexual reputation worth defending after his rape conviction, and demand damages from those who doubted it.

Polanski looked magnificent on the video link. The camera focused close on his face as he told the jury that the offending paragraph about the Scandinavian model was ‘an abominable lie’ which implied he possessed a ‘callous indifference’ to his wife’s murder. He admitted under cross-examination, however, that a month after Sharon Tate’s death he had been sleeping with other women. Mia Farrow added more stardust to the proceedings, by arriving in court to give evidence on Polanski’s behalf. She said she had been with him on the night he went to Elaine’s, and he could not possibly have made a pass at a strange woman because he was in no mood for seduction.

Even if the jury ultimately decided that the story as told in
Vanity Fair
was untrue, the magazine would have had a chance to reduce the damages, perhaps to vanishing point, if it had been allowed to show in court the full testimony of the girl Polanski had raped. ‘The jury in London was permitted to hear only the outline of the formal conviction and not the background,’ the editor recalled. ‘The details could not be published in the UK during Polanski’s suit against
Vanity Fair
; after the verdict, the reporting restrictions were lifted.’

The judge went on to tell the jury that ‘We are not a court of morals. We are not here to judge Mr Polanski’s personal lifestyle’ – even though others might have thought that the ‘lifestyle’ of a convicted sex offender had some bearing on the case. The jury found for Polanski, and the court awarded him damages of £50,000 and costs estimated at £1.5 million.

If Polanski was seeking to stop discussion of his crime, the 2005 libel action was a failure. Not all the lawyers in England could make the case go away. In 2010 he strayed into Switzerland, where the gendarmerie arrested and threatened to deport him. Nor did readers suffer: they could easily find the details the judge told the jury not to consider on the Web. His action seemed futile.

Yet you risk misunderstanding the nature of censorship if you assume it is always concerned with the obliteration of information. For a few years, Polanski could say that a court had considered the evidence about his sex life, and upheld his reputation and punished his detractors. And not just any court, but an
English
court, whose judgements in other areas of law were – correctly – respected.

Location matters as much in censorship as it does in property development. London gave the powerful something as useful as the suppression of secrets: it gave dignity and authority to their claims of innocence. Even if unwelcome information about them remained in circulation, rich claimants could tell all fair-minded people that an impartial legal process had vindicated their reputations and damned their critics as knaves, fools or liars. They could warn anyone who thought about repeating the allegations against them that the English courts would hit them with stupendous damages, and costs as well.

From Robert Maxwell onwards, they had the satisfaction of making their enemies learn that they could not criticise them without feeling the consequences. They taught their opponents a lesson in ‘respect’; showed them that there were still punishments for offending the mighty. The cases they brought could consume their critics’ lives, and threaten on occasion to bankrupt them, but they did not consume the lives of the oligarchs. They could hand the job of imposing retribution to their lawyers and reputation managers, and cover the costs of litigation from their loose change.

Censorship is not always about hiding secrets. Sometimes it is just an assertion of raw power.

On 1 February 1960, four black students – Joe McNeil, Frank McCain, Dave Richmond and Ezell Blair – went to the lunch counter at Woolworth’s in Greensboro, North Carolina, and ordered hot dogs and coffee, a courageous request to make at that time and in that place. Despite the US Supreme Court announcing that segregation was unconstitutional, white supremacists still ruled the American South. Most whites could vote, and most blacks could not – poll taxes, literacy tests and intimidation kept them off the electoral rolls. White Southern politicians did not just fail to represent black interests; they were the beneficiaries of a political system whose first purpose was to keep blacks disenfranchised. If they wanted to be re-elected, they knew they had to defend segregation or pay the political price. Political disenfranchisement had a further consequence. Because blacks were not on electoral rolls, they could not serve on juries, let alone aspire to be judges. They were at the mercy of racists in the legal system who could.

Segregation did not just mandate separate services for blacks and whites. Blacks’ inferior political and legal status ensured that the services provided to them were in every respect shabbier and meaner. It is extraordinary that within a generation of the struggle against segregation, liberals and leftists could forget the importance of treating citizens without regard for their colour or creed, and embrace identity politics. In the Deep South, ‘respecting difference’ and ‘celebrating diversity’ meant that whites went to white schools and universities, and blacks went to underfunded black schools and universities. Whites drank at whites-only water fountains, and blacks at blacks-only fountains. Blacks had to sit at the back of buses, and could not use the ‘white’ seats at the front; and in Woolworth’s and other dime stores they could shop, but they could not sit down at the whites-only counter and order a hot dog and a cup of coffee.

McCain ordered a hot dog and a cup of coffee. The waitress consulted the manager.

‘Sorry, I can’t serve you. We don’t serve coloureds here.’

‘But you do have hot dogs and coffee,’ said McNeil, pointing at whites eating and drinking further down the counter.

‘I can’t serve you.’

The boys didn’t argue, but they didn’t move. They just sat at the counter until the store closed.

The next day twenty-seven black Greensboro students went to Woolworth’s. The waitress wouldn’t serve them either. So they just sat there too.

The sit-in movement spread across the American South. Blacks occupied whites-only beaches, parks and libraries as well as cafés and dime stores. In Nashville, Tennessee, eighty students put on their smartest clothes, picked up their textbooks and Bibles and divided into relay teams. The first fourteen sat down at a lunch counter.

‘Right away the toughs started throwing things over us and putting out cigarette butts on our backs,’ recalled Candice Carawan. ‘I’ve got to say that didn’t surprise me. What did surprise me is that when the police came they just watched. Finally, they turned to the students at the lunch counter: “OK nigras, get up from the lunch counter or we’re going to arrest you.” When nobody moved, they just peeled those people with their neat dresses and their Bibles right off their seats and carried them out to the paddy wagons. Before they were out of the store, another fourteen of us took their places at the counter. They got peeled off, and another fourteen sat down. By the end, eighty of us got arrested. Boy it was something!’

At no point did they resist. Christian pacifism and American idealism inspired the black Civil Rights movement of 1955 to 1968. When Carawan’s white ‘toughs’ smeared food over blacks sitting at lunch counters, the blacks did not stand up and hit them. When white employers sacked black workers for trying to register to vote, the workers did not turn violent. When the police stood aside and gave the Ku Klux Klan fifteen minutes’ free time to inflict ferocious injuries on ‘freedom riders’ trying to travel on the segregated buses of the Deep South, the protesters did not fight back. When the police inflicted injuries of their own on protesters in jail cells, the protesters did not retaliate. Even after white supremacists dynamited the Sixteenth Street Baptist Church in Birmingham, Alabama, and murdered four little girls, blacks did not bomb white churches in return.

At the start of the Civil Rights movement, Martin Luther King said that it would adhere to the tactics of non-violent civil disobedience. ‘Don’t let anyone compare our actions to the Ku Klux Klan. There will be no crosses burned. There will be no white persons pulled out of their homes and taken out on some distant road and murdered. If we protest courageously and with dignity, future generations of historians will pause and say, “There lived a great people, a black people, who injected new meaning and dignity into the veins of civilization.”’

Civil disobedience against unjust laws or an occupying power is a hard tactic, that demands intelligence and courage. Only rarely does it work in full democracies. When there are iniquitous laws that have no popular mandate, and require popular cooperation, a mass refusal to obey can destroy them. Hundreds of thousands refused to pay Margaret Thatcher’s poll tax, a naked piece of class legislation which said that a dustman must meet the same tax bill as a duke. As large parts of British society withdrew their consent for the tax, it collapsed, as did her premiership shortly afterwards. In most instances, however, the proponents of civil disobedience have to justify breaking the law rather than campaigning to change it. This is the catch that usually snags leftists in Western democracies when they feel the urge to turn militant. They rarely have a respectable answer to the question, ‘If you say you have the right to break the law, why can’t people you find repellent – racists, fascists – break the law too?’

Debates about the morality of law-breaking in a democracy did not concern the Civil Rights movement. The American South in 1960 was anything but a democracy. To the question, ‘Why do you not use the ballot box to seek change?’, blacks had the irrefutable answer that white supremacists stopped them voting.

The courage in civil disobedience comes from the dignified nature of the resistance. Protesters never sink to the level of their opponents. As well as refusing to meet violence with violence, true believers in civil disobedience respect the law as they break it. They do not try to escape arrest like common criminals, but use their trials to dramatise their cause and alert public opinion. It follows that peaceful civil disobedience can work in oppressive societies that nevertheless allow protesters to protest. The example Martin Luther King drew on was Gandhi’s campaign of the 1930s and 1940s against British imperial rule in India. Like Gandhi, King directed his protests against a system that was repressive, but not so repressive as to make disobedience futile. If King had called on the masses to defy the law and take to the streets, and the masses had known the police would have gunned them down, the masses would have stayed at home.

Writing about Gandhi’s belief that the victims of Nazism should arouse the conscience of the world by passively protesting, a sympathetic George Orwell said that Gandhi did not understand the impossibility of protest in totalitarian states. ‘It is difficult to see how Gandhi’s methods could be applied in a country where opponents of the regime disappear in the middle of the night and are never heard of again. Without a free press and the right of assembly, it is impossible not only to appeal to outside opinion, but to bring a mass movement into being, or even to make your intentions known to your adversary.’

A civil disobedience movement needs a civil society to agitate, and a free or at least half-free press to report its case. It uses the power of publicity against the power of the police baton, and cannot succeed if censorship stops domestic and international opinion from learning of its struggles.

In March 1960, the Committee to Defend Martin Luther King tried to use publicity to stir the conscience of America. It united Northern liberals, black Southern ministers and celebrities such as Harry Belafonte, Marlon Brando, Nat King Cole and Sidney Poitier, who risked losing income by challenging the prejudices of a large section of their audiences. They declared their solidarity with the sit-in movement in a two-page advertisement in the
New York Times
. Under the stirring headline ‘Heed Their Rising Voices’, they pledged their support to the American teenagers whose ‘courage and amazing restraint have inspired millions and given a new dignity to the cause of freedom’.

The committee picked out details of the black struggle to heighten their readers’ indignation. In Montgomery, Alabama, they said that after students sang the patriotic anthem ‘My Country, ’Tis of Thee’ on the State Capitol steps, ‘their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to register, their dining hall was padlocked in an attempt to starve them into submission.’ The committee went on to describe how the authorities harassed King. ‘Again and again the Southern violators [of the US Constitution] have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times – for speeding, loitering, and similar offences. And now they have charged him with perjury – a felony under which they could imprison him for ten years. Obviously, their real purpose is to remove him physically as the leader to whom the students – and millions of others – look for guidance and support, and thereby to intimidate all leaders who may rise in the South.’

Not everything the liberals, ministers and celebrities endorsed in the advertisement was correct, for it is rare for every word in a piece of political writing to be true. Writers do their best, but even if we manage to fact-check everything, an argument is not a rendition of pure information. Unlike speak-your-weight machines, writers select facts, emphasise and arrange them. Critics and censors can always find reasons for offence if they put their minds to it, because there is always something – an unchecked fact, an unsupported innuendo – to object to.

The defenders of Martin Luther King knew two great truths, which no one could deny: racial oppression was everywhere in the United States; and the authorities were determined to use force to maintain the status quo. The detail did not bother them, and when they said that the police had arrested Martin Luther King seven times, they made a mistake. In fact the police had hauled him in four times. King said officers had assaulted him on one occasion. The officers denied it. Students had staged a demonstration on the State Capitol steps in Montgomery, as the advert stated, but they sang ‘The Star-Spangled Banner’, not ‘My Country, ’Tis of Thee’. The State Board of Education had expelled nine students, but not for leading the demonstration at the Capitol, but for demanding service at a whites-only lunch counter in the Montgomery County Courthouse on another day. The defence committee also overestimated the extent of police complicity in subduing the protests. Although the state authorities deployed the police near the campus in large numbers, they did not at any time ‘ring’ the campus. Nor was there any attempt to ‘starve’ the students into submission.

These were undoubtedly blemishes. No writer who does not try to get his or her facts right can demand the trust of the reader. However, it was not the mistakes that infuriated Alabama’s officials but the truths the campaigners were telling about the official harassment of the leaders of the Civil Rights movement, and the punishment of students asking for racial equality. That the proclamation of support for King appeared in a do-gooding Yankee newspaper written for the Confederacy’s traditional enemies in the North did nothing to improve their temper. They wanted to stop publicity for the Civil Rights movement, because they understood that press coverage was putting pressure on a reluctant Kennedy administration to end the abuse of power.

But how could they stop it? America in 1960 did not have official censors to vet reports and send writers and editors to prison. Instead it had Thomas Jefferson and James Madison’s First Amendment to the US Constitution, which guaranteed freedom of speech and freedom of religious conscience:

But America had also inherited the English libel law, and the ideas of English judges became the tools of Southern politicians and bureaucrats as they sought to work their way around constitutional guarantees of freedom of the press.

On the face of it, no official appeared able to sue the
New York Times
, because it had not mentioned any official by name. But libel law covered whatever innuendos or suggestions the court could find, as well as the words on the page. The defenders of Martin Luther King had denounced the police’s treatment of students and of King. Lawyers for L.B. Sullivan, Montgomery’s police commissioner, decided that the
New York Times
was accusing him of answering ‘Dr. King’s peaceful protests with intimidation and violence’.

Libel law got round a further difficulty. Hardly anyone in Alabama read Yankee newspapers. In 1960, only 394 of the 650,000 copies the
New York Times
sold daily went to newsstands and subscribers in Alabama. But because libel, almost alone among civil torts, did not require the alleged victim to prove that he or she had suffered damage or financial loss, the fact that a mere few hundred people in Alabama had read the offending advert did not matter. If the
New York Times
had sold one copy in Alabama, that would have been sufficient.

Sullivan demanded a retraction. The
New York Times
refused, as the advertisement had not mentioned him. Sullivan sued. To give his action a local touch he included in his libel writ four black Alabama ministers who had put their names to the advert, and he took his case to an Alabama court. A white judge and jury heard the case and, naturally, found for Sullivan. They awarded him $500,000. Bailiffs seized the ministers’ cars, while the court told the
New York Times
to find the equivalent of well over $3 million in today’s money.