James Rhodes wins at the Supreme Court

The Supreme Court gave free speech a boost last week when it handed down its ruling in a case known as MLA v OPO, and lifted an injunction prohibiting publication of an autobiography.
The case concerned Instrumental, a memoir by the classical pianist James Rhodes. The book includes graphic accounts of the sexual abuse that Rhodes suffered as a young boy, and how music helped him to overcome the mental health issues he suffered as a result. Rhodes ex-wife sought the injunction on behalf of their son, who as Aspergers Syndrome. She argued that, were their son to read the book, it would cause him significant psychological harm. Relying on 19th century case law, she argued that publication would be to knowingly cause this distress, for which her son would have an action in civil law.
The Court of Appeal had accepted this argument and put an injunction in place, even going so far as to provide a schedule of excerpts from the book that should be removed before publication would be allowed. But on Wednesday the Supreme Court ruled unanimously that this was an error.
The judgment of the court is worth reading for several reasons. First, the discussion of the case law as it evolved in the 19th and 20th centuries is fascinating. Each is a strange story unto itself: whether it is the slightly ridiculous tale of Wilkinson v Downton [1897] where a man, for a joke, told the landlady of the local pub that her husband had been seriously injured; or the intrigue of Janvier v Sweeney [1919], where a private investigator told a woman her German husband was a spy, in order to surreptitiously gain access to the property in which she was lodging.
The judgment is also noteworthy for its many quotable passages in favour of the principles of free speech. The judges held that there should be no bar on a person disclosing the truth about themselves, even if those disclosures might cause distress in others. If the opposite were true, it would allow anyone to stall the publication of books they disagreed with on the basis that it might cause them distress.
The judgment makes the interesting and important point that freedom of style is an important element to free speech. To dictate the tone or words that someone must use is as much an infringement of their right to freedom of expression as censoring facts:

78. The Court of Appeal recognised that the appellant had a right to tell his story, but they held for the purposes of an interlocutory injunction that it was arguably unjustifiable for him to do so in graphic language. The injunction permits publication of the book only in a bowdlerised version. This presents problems both as a matter of principle and in the form of the injunction. As to the former, the book’s revelation of what it meant to the appellant to undergo his experience of abuse as a child, and how it has continued to affect him throughout his life, is communicated through the brutal language which he uses. His writing contains dark descriptions of emotional hell, self-hatred and rage, as can be seen in the extracts which we have set out. The reader gains an insight into his pain but also his resilience and achievements. To lighten the darkness would reduce its effect. The court has taken editorial control over the manner in which the appellant’s story is expressed. A right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively.

Our rights are won by those brave enough to fight for them

I was at the Supreme Court last week to hear Lord Toulson read a summary of the judgment. James Rhodes sat with his wife, his publisher and his solicitor in the seats reserved for parties to the case. The judge spoke, as he had to, about the shocking content of the book. Rhodes was visibly upset: He took off his glasses and put his head in his hands. Instrumental has been an incredibly difficult book to write, but he has written it all the same. Fighting a fourteen-month legal battle in order to see it published has not been a mere inconvenience, but an incredibly distressing experience. Instead of being able to publish his memoir, and then perhaps place the abuse firmly in his past, he was forced to discuss the events, and his descriptions of them, afresh. It would have been entirely understandable if he had decided that the court battles were bot worth the bother.
However, he chose to see the legal process through to the end, and it is only because of this that publishers will now enjoy the strong judgment in James Rhodes v OPO as part of our legal framework.
This, I have discovered, is often how our free speech protections are won: by outliers. People willing to risk their livelihoods, their mental well-being, their liberty or even their personal safety to fight for the principle of free speech. Most of us are not brave enough to do this, and we owe our thanks to the few who are.

This post first appeared on Hack/Freedom.