A Q and A with Professor George Christie about Philosopher Kings? The Adjudication of Conflicting Human Rights and Social Values
Legal reasoning has long been one of Professor George Christie’s key scholarly interests. He has been particularly engaged, he says, to discover whether law is “just politics in another guise,” a process in which decision makers rationalize their policy preferences, or whether it has some sort of objective content.
In his new book, Philosopher Kings? The Adjudication of Conflicting Human Rights and Social Values (Oxford University Press, 2011), Christie examines how different legal systems attempt to balance the rights of free expression and privacy. “These areas offer a good illustration of the differences between continental methods of reasoning and common law methods of reasoning,” says Christie, the James B. Duke Professor of Law. “Suppose you had a law that was common to both common law countries and civil law countries. Would you get the same sorts of results?”
Global Matters: Tell me about your approach in this book.
Christie: The first sorts of cases I examined were cases in which differences in procedure were likely to lead to different results even if, ostensibly, the basic principles were the same. I found that there would be differences in results, partly because of the difference in the way common law systems treat findings of fact at the trial level from the way they are treated in civil law systems in which appellate courts have greater freedom to substitute own findings of fact for those of trial courts.
From there I moved on to freedom of expression. There seems to be a universal belief that freedom of expression is important, that privacy is important, and that freedom of religion is important. I got interested in looking at cases in Europe because the European Convention on Human Rights has been adopted not only by the civil law countries that are members of the European community and by other civil law countries as well, but also by the United Kingdom, a common law country. And indeed it was in comparing how cases were treated by the British courts and noting how the same case might be treated by a continental court that I first became aware that procedural differences, such as the deference given to local decision-making, could make a difference in ultimate conclusions.
GM: What were some of the clearest disparities between different legal systems with regard to freedom of expression?
Christie: Freedom of expression, freedom to the private life of an individual, and freedom of religious expression are all freedoms encompassed by the European Convention. The convention asserts that people have these rights, but that they are defeasible for important public reasons — such as the rights of other people or the rights of society itself or of the state. And that, of course, is the justification for punishing Holocaust denial, something the European courts say is permissible, or for permitting the state to withdraw certain privileges from women who wear Muslim headgear. Indeed, wearing the burqua in public is now prohibited in France. The ground for regulating a woman’s attire is that this regulation is necessary in order to protect secularism. With regard to punishing Holocaust denial, which is obviously a carryover from the horrors of WWII, there is the fear of the resurrection of Nazi-type totalitarian thinking.
I compared this treatment of these issues with American law. And American law, although it permits restriction of speech for various social reasons, has clearly evolved to the point where, if speech is not defamatory, one can even talk about violence so long as it is not shown that the person speaking is advocating immediate violence and that there is a real chance that the advocacy would be effective in generating that violence. Accordingly, punishing Holocaust denial is not possible in the United States. You can even advocate totalitarianism. One can also advocate the violent overthrow of the government and still evade punishment if the government cannot demonstrate that there is a real chance that such an attempt will actually be made.
The rights protected by our Constitution are largely guaranteed against state intervention. The Constitution really says nothing about the duty of the state to facilitate a person’s exercise of these rights. But the European Convention has been construed as imposing an obligation on the states that are parties to enable their citizens to enjoy those rights.
The exercise of the right to freedom of expression can obviously interfere with privacy rights, such as when people show pictures of others in embarrassing postures or disclose information that a person would rather not be generally known. It has been held, through decisions of the European Court of Human Rights and by a resolution of the Parliamentary Assembly of the Council of Europe, that freedom of expression and the right to protection of privacy are equal in value. This resolution was undoubtedly instigated by the death of Princess Diana in 1997 — many people felt it was the pursuit of her and her companion by paparazzi that caused the auto accident which resulted in her tragic death. So you have a situation in which the courts have to decide in any particular case which value takes precedence. And the major part of my book has to do with whether or not it is possible to do that.
GM: You focus on other celebrities in your examination of the tension between freedom of expression and privacy rights in Philosopher Kings.
Christie: Cases are legion. Naomi Campbell’s case is important. She claimed that, unlike many other high-paid fashion models, she did not take drugs. A British tabloid found out that she was, in fact, attending Narcotics Anonymous (NA) meetings, and published stories stating that she had taken drugs and where she was seeking treatment. They also published pictures of her emerging from an NA meeting. She sued to enjoin the publication, and then sued for damages. After a trial court ruled in her favor, a three-judge court of appeal ruled against her. In a 3-2 decision in the House of Lords, the trial court decision was reinstated. The law lords decided that where she was seeking therapy and the pictures of her emerging from that place did not advance any important public interest, such as an interest based on political, scientific, or educational considerations, and did not have anything to do with artistic expression. So they said that, if you publish information that a person would reasonably want to be kept private and which was not in the public domain, in order to justify the speech, the defendant would have to show that the speech was in the public interest for the reasons I’ve just expressed. The courts would then decide, case by case, whether this was so.
Another similar case involved Princess Caroline von Hannover, who claimed that pictures taken of herself and a boyfriend, of herself and her children, and of herself and her current husband, invaded her privacy. She brought an action in Germany and got some limited relief relating to the photos of the princess and her children. When the case reached the European Court of Human Rights, that court ruled that all the photographs invaded her privacy because famous public figures and even politicians enjoy privacy rights that could only be overcome by a showing that the challenged expression contributed to “a debate of general interest.” When the Campbell case also reached the European Court, the court again held, in a decision issued as my book was being published, that prominent people who attract notoriety are still entitled to some elements of privacy, and it upheld the British decision in Campbell’s favor. There was one dissenter, Judge David Thór Björvinsson of Iceland who is a Duke LLM (’87) who believed, as do I, that it is restrictions on speech that need to be justified rather than approaching the issue in a way that puts speech on the defensive.