You Can't Read This Book: Censorship in an Age of Freedom (28 page)

The March of the Nerds

On a wet evening in 2009, I addressed a meeting in a London pub close to the law courts. I gave a speech along the lines I have presented in this book. I warned that the Internet was opening up the possibility of extra-territorial censorship, and that authoritarian jurisdictions could ban books, impose fines and use international agreements to enforce their verdicts. British judges were the worst offenders in the democratic world, I continued. They allowed sex offenders to sue. They allowed criminals to collect damages, and did not reform the law when their criminality was exposed. They presided over a system that was so biased and so expensive it compelled honest men and women to deny what they knew to be true. Suing scientists engaged in essential arguments about public health was the logical continuation of a policy of suppression.

Simon Singh’s case was not unique. The American health conglomerate NMT sued the British doctor Peter Wilmshurst in London for criticising its treatments in an online American scientific journal. Another pharmaceutical company was to go after a Danish radiologist after he alleged at a scientific conference in Britain that there was evidence of a link between one of its treatments and a rare and crippling muscular condition. The editors of medical journals were admitting that they refused to print or censored scientific papers they feared might bring them to the attention of the courts. A vitamin salesman sued Ben Goldacre, Britain’s pre-eminent demystifier of pseudo-science, after Goldacre condemned him in the
Guardian
for peddling his pills to sufferers from Aids in southern Africa, and telling them that retro-viral drugs were poisons. The libel action failed, but for more than a year all British newspapers, and all foreign newspapers the vitamin salesman might sue in London, risked a writ if they talked about his sales techniques.

My glum account of English oppression was a warm-up act for Singh, who was preparing to take the microphone and announce whether he was prepared to fight the libel writ.

The chiropractors had not sued the
Guardian
, but had gone for Singh personally, hoping that the threat of financial ruin would force him to grovel. The
Guardian
withdrew his article from their website, thus lessening any ‘offence’ caused, and offered the chiropractors the right of reply, so they could tell their side of the story and convince readers by argument rather than by threats that Singh was in the wrong.

The chiropractors carried on suing Singh, and demanded that he pay them damages and apologise. Singh did not see why he should, considering he was reporting reputable evidence that chiropractic therapy was the invention of a faith healer, whose claims that his mystical method could cure sicknesses that had nothing to do with backache were nonsense. At a preliminary hearing to determine the ‘meaning’ of Singh’s article, the judiciary soon showed why English law was feared and despised across the free world. Determined to draw him into the law’s clutches, the judge put the worst possible construction on Singh’s words.

He ruled that because Singh had said ‘there is not a jot of evidence’ that chiropractic therapists could cure colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, the courts would at enormous expense see if they could find one piece of evidence, however small, to support the chiropractors. Maybe if a child stood up in court and breathlessly announced that a chiropractor had cured her, that would be a jot. Maybe if the judge could find a smidgeon of doubt in one of the studies, Singh would have to pay for a phrase that may have been ever so slightly inaccurate.

If Singh could prove that no such doubt existed, he would still not be free of the law. The judge ruled that when Singh said of the British Chiropractic Association, ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments,’ he was accusing it of dishonesty. It seemed clear to those of us who did not have the benefit of a legal training that he was doing no such thing. In his article, Singh said that chiropractic therapists had ‘wacky ideas’, and accused the hard-line among them of being ‘fundamentalists’. In normal English usage, to describe someone as a fundamentalist who holds wacky ideas is to accuse him of folly, not of mendacity.

Not according to the judge. In his role as a definer of hidden meanings, he ruled that when Singh wrote ‘happily promotes’, he did not mean that chiropractors ‘carelessly’ promoted bogus therapies without a thought for the available evidence, or ‘stupidly’ promoted them because they did not understand the findings of clinical trials. No. Singh was accusing therapists of deliberately and fraudulently promoting quack remedies they knew to be worthless. ‘That is in my judgement the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct,’ the judge told Singh.

Proving whether a believer in magical medicine, the ‘faked’ moon landings, the ‘truth’ about Obama’s birth certificate or any other mystical or paranoid theory is a fool or a liar is a next to impossible task. The most disturbing thing about fantasists is that they are often sincere. Yet on the ruling of the English courts, a writer who described a neo-Nazi or an Islamist as ‘happily promoting bogus conspiracy theories’ about the global reach of the Elders of Zion, for which there is ‘not a jot of evidence’, could be sued for libel in London. And unless the writer could prove that the object of the critique was a liar instead of a fool, the writer would lose.

After hearing the judge’s ruling, Singh’s friends, his lawyers and everyone else who had his best interests at heart advised him to get out of the madhouse of the law while he still could. He had already risked £100,000 of his own money. If he fought the case, it would obsess his every waking moment for a year, possibly longer, and he could lose ten times that amount if the verdict went against him. Even if he won, he would still lose, because another peculiarity of the English law is that the victor cannot recoup his full costs. It was as if the judiciary had put Singh in a devil’s version of
Who Wants to be a Millionaire?

Singh’s wife, the BBC journalist Anita Anand, understood the principle at stake, and backed her husband. Whatever happened, she said, the case would not divide them. But the question remained for Singh, how far could he go before deciding that the risk to his family’s finances was too great? To cap it all, the judge had come up with a reading of Singh’s words that made a defence impossible.

No one would have blamed him for backing down. There would have been no dishonour in withdrawing from the fray. Thousands of publishers and writers in England and beyond have looked at the cost and biases of the English law and thought surrender the only option. Singh said that if he were a twenty-five-year-old with no money he would have apologised. But his bestselling books had given him financial independence. He resolved to refuse to put his name to a lie by authorising an apology. He knew what his enemies would do with it. Ernst and Singh had spent years investigating alternative medicine. No potential patient would spend more than a few days doing the same. If he apologised, chiropractic therapists would wave his retraction at potential patients, and say that Singh had admitted that their philosophy was not gibberish, and their claims to treat children were not bogus. As shamefully, an apology would also make Singh complicit in silencing other journalists, scientists and editors, who would think hard before challenging alternative therapists after seeing how the law had forced him to retract.

From Stalin in his show trials to oligarchs suing investigative journalists, censors want recantations as well as exemplary punishments. I have seen billionaires, including convicted criminals, extract admissions of guilt from British newspapers too poor or too frightened to fight, and use them to convince journalists and politicians around the world that legitimate criticisms of their actions were groundless. Singh did not wish to join such sorry company.

He told the audience in the pub that night that he cared about health and the health of children, and thought that his article was fair and reasonable. He had spoken to his lawyers, and they had promised to try to find a way to appeal the judge’s ruling. ‘I should be able to write about scientific issues without the fear of being intimidated,’ he said. ‘It’s about more than just me. Bloggers, journalists and scientists … we should all have the right to write about important issues without fear of being intimidated. It’s not just about science. It’s about all journalists being able to write fairly and reasonably.’

The audience who had gathered to hear him were science bloggers, members of the ‘skeptic’ movement the Internet had empowered to argue for evidence-based politics and against official toleration of superstition. They did not need newspaper editors or broadcasters to give their views a hearing. They knew that they could reach any interested reader with access to a computer anywhere in the world, and revelled in the new opportunities the Web had opened up.

The normal response of the British to a speaker’s description of an abuse of power is to say ‘Tut-tut,’ often quite sternly. But instead of shrugging their shoulders and muttering, ‘It’s a bad business but what can we do?’, Singh’s audience of Net-literate skeptics turned into a heaving mass of whooping, hollering geeks. They roared their defiance as a red mist descended over their spectacles, and vowed they would not rest until they had brought the rotten system of English censorship crashing to the ground.

Shocked and awed, I said to Ben Goldacre, ‘The nerds are on the march. I wouldn’t like to be standing in their way.’

An uncharacteristically spiritual look passed over the great debunker’s face. ‘Yes,’ he said. ‘Strike us down, we shall become more powerful than you could possibly imagine.’

I realised this was what Obi-Wan Kenobi said to Darth Vader in
Star Wars
, and mockingly commented that the skeptic movement’s highest cultural reference point was a 1970s sci-fi movie.

I should have been more courteous.

Goldacre was right about this, as so much else. The ‘Streisand effect’ – first seen in 2003, when the actress tried to remove pictures of her Malibu home from a publicly available collection, and ensured that they were copied around the world – kicked in with a vengeance. Dozens of websites reprinted Singh’s original article. What had been a small piece on the comment pages of a British newspaper became a global phenomenon read by anyone with an interest in science and free debate. Although newspapers and broadcasters were careful about what they said for fear the chiropractors would sue them too, bloggers were uninhibited. They seemed beyond the control of the censors. Individually, each writer or tweeter appeared too small to go after. Collectively, there were too many of them. Because skeptics were informed readers of science blogs, Singh’s solicitor Robert Dougans, a brilliant young lawyer on his first big case, and Adrienne Page, his QC, found they could call on the knowledge of hundreds of scientists just by logging on to the Net and crowd-sourcing their appeal.

The chiropractors produced pleadings for the court that said there was reliable evidence that they could cure sick children. Bloggers put them up, and their readers picked them apart. The chiropractors claimed that a study suggested that they could cure babies with colic. One online commentator noticed, ‘There was no control group at all. It simply follows 316 babies and found that most of them eventually got better. Well, they do, don’t they?’ The chiropractors said a second study found that their treatments worked. The bloggers said that this study consisted of ‘two case reports and they refer to use of a mechanical device, not the usual chiropractic manipulation’. Computer-literate scientists, who understood the investigative power of the Net, tracked down six hundred chiropractic therapists in Britain who claimed they could treat childhood illnesses, and reported them for breaching advertising standards requirements. The regulators at the General Chiropractic Council were so overwhelmed with complaints that they had to take on more staff. At one point in 2010, one in four chiropractors was under investigation.

A justifiable paranoia descended on British chiropractic therapists. Their trade associations warned them to take down their websites and to refuse to talk to strangers, who might be undercover skeptics. If they had leaflets ‘that state you treat whiplash, colic or other childhood problems in your clinic or at any other site where they might be displayed with your contact details on them. DO NOT USE them until further notice.’

The Singh case brought home to English law the interactive possibility of the Net. It was not just that the courts could no longer stop an article being read, or that their threat of censorship turned readers into active citizens who could help Singh and his lawyers in building a defence. Libel law had created a virtual community that was ready to turn into the most successful British free-speech movement since the campaign fifty years previously against the obscenity laws the state used to prosecute Penguin Books for publishing
Lady Chatterley’s Lover
.

On the one hand, the legal establishment faced a traditional reform campaign which William Wilberforce would have recognised. Sense about Science, Index on Censorship and English PEN mobilised elite scientific, media and political figures. Running alongside the traditional reformers was the exuberant and anarchic reform campaign on the Web, which Wilberforce could never have imagined.

The judiciary backed down. Faced with growing alarm from politicians and courtrooms packed with protesters, and maybe the dim realisation that they were sitting on the benches of a democracy, the judges of the Court of Appeal reversed all previous rulings. The legal reasoning they used was technical – when Singh said there was ‘not a jot’ of evidence to support the therapists’ claims, the judges decided he was making a ‘fair comment’ based on facts truly stated rather than stating a plain fact. It seemed to outsiders to be a distinction without a difference, but the ruling meant that the chiropractors now faced fearsome difficulties in pressing forward with their case. They dropped their action, and Singh, and all the campaign groups and Net activists who stood by him, savoured a rare triumph.