Americans who fail to appreciate the protection provided by the First Amendment should consider the case of the nation that gave freedom of expression to the world.

Britain is facing a crisis of press freedom. To quote from the first editorial of the recently founded British Journalism Review, newspapers are getting less, not more, free, and a vast array of restrictive laws and practices is "choking the lifeblood out of British journalism." What has happened to the land of Magna Carta and Areopagitica? Is liberty of the press no longer, in Blackstone's words, "the birthright of Britons?" Were the authors of the American Bill of Rights wrong to suppose that the First Amendment laid down no "novel principles" but simply embodied "certain guarantees and immunities we had inherited from our English ancestors?" Has modern Britain betrayed her libertarian heritage?

The answer to these questions is that Britain's heritage has been widely misunderstood, especially abroad. It is not what it seems at all. For the fundamental fact is that no written constitution exists to safeguard British liberties. The government is an elective dictatorship which can and does abridge them as it chooses. As the second Earl of Pembroke said, "parliament can do any thing but make a man a woman, and a woman a man." After the English Bill of Rights was enacted in 1689, politicians frequently paid lip service to free expression. But the attitude of successive administrations was epitomized by Charles II's press censor, Sir Roger L'Estrange, who opposed newspaperdom because "it makes the multitude too familiar with the actions and counsels of their superiors."

For nearly a century after the thirteen colonies defeated the Stamp Act, a stamp duty on newspapers was just one of the battery of weapons with which governments in the mother country controlled the press. Most effective were the libel laws, interpreted by reactionary judges with a malign severity that persists to this day. Financial pressure, whether in the form of taxes or subsidies, was also an important method of disciplining the press. But, crucially, rulers exerted control through their superior social position.

During the nineteenth century, government was pretty well the business of a hereditary caste, whereas Fleet Street hacks were invariably men of low degree. Queen Victoria wanted them banished from polite society and the Duke of Wellington referred contemptuously to "blackguard editors of newspapers." Such was the magic of royalty and aristocracy that, far from repudiating this arrogant elitism, even the most independent journalists kowtowed to the established order. John Delane, editor of The Times in its thunderous heyday, was a monumental snob who ingratiated himself with the likes of Lord Palmerston. And at the beginning of this century Lord Northcliffe, creator of the popular press, could be found writing to Edward VII's private secretary: "The editors of newspapers are really very glad to receive any hint as to what or what not to publish."

The position of the press was not significantly improved during the twentieth century, when wars, crises, and other developments (such as the concentration of newspaper ownership) allowed the state to increase its hold over public information. An authoritarian ruling class and an Olympian civil service regarded universal suffrage as a threat to their monopoly. Mistrusting the people and fearing popular radicalism, they have never come to terms with democracy in the sense of accepting that only an informed electorate can properly exercise its vote.

Writing in 1956, sociologist Edward Shils observed that "the acceptance of hierarchy in British society permits the government to retain its secrets, with little challenge or resentment. . . . The deferential attitude of the working and middle classes is matched by the uncommunicativeness of the upper middle classes and of those who govern. . . . No ruling class discloses as little of its confidential proceeedings as the British."

In the same year, during the Suez crisis, the London Times proved how right Shils was. The paper had traditionally been committed to the idea that the press is the fourth estate of the realm and that its "first duty" (in the words of a famous 1852 editorial) is "to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation." But senior men on the newspaper behaved as privileged insiders whose first loyalty was to the establishment. They learned of the agreement by which Britain and France colluded with Israel to invade Egypt, an agreement so discreditable that Anthony Eden, the prime minister, lied about it to his own cabinet as well as to parliament and people. Yet far from exposing Eden's mendacity, The Times kept the secret -- even from its own archivist.

It was as if The Washington Post, having discovered the truth about Watergate, had participated in the coverup. Yet in Britain such stiff-upper-lipped taciturnity is far from being indicted as a modern treason of the clerks. Rather, it is associated with the hermetic quality of the old boy network, with the inhibition about talking freely in front of servants, social inferiors, and (in the empire) "natives," with the hypocrisy to deeply ingrained in the national character. It is part of the disease of secrecy that keeps even democratic Britain a relatively closed society.

Of course, the powers that be make frequent genuflections toward open government. But their visceral attitude is well illustrated by the Cabinet Office's refusal (in the suitably Orwellian year of 1984) to release a study of its developing policy toward open government on the ground that it "obviously would not lend itself to publication." Even The Times was outraged. Its headline read: PROGRESS TOWARDS OPEN GOVERNMENT TO BE KEPT A SECRET.

Yet the British press, lacking the constitutional defenses that would enable and encourage it to assert its independence, still panders to the practice of official reticence. At Westminster, reporters band together in a club known as the Lobby. Its members cooperate in what former Prime Minister Edward Heath called the "corrupt" system of unattributable briefings through which governments manipulate the media. Masquerading as their own men, the reporters become the ventriloquists' dummies of "information officers" like Bernard Ingham, Margaret Thatcher's ferociously devoted press secretary. Attending the Lobby's centenary at the Savoy Hotel in 1984, Margaret Thatcher herself congratulated the members of this "Secret Service" -- in her words -- on a "successful hungred years in pursuit of press freedom." Apparently she spoke without irony.

It is only natural for politicians to regard as free a press that prefers to receive official briefings than to engage in the hard slog of investigative journalism. In fact, under Thatcher the press was more servile than at any time this century -- except perhaps during the 1930s, when it engaged in a conspiracy of silence about Mrs. Simpson and tamely acceded to appeasement. Lobby journalists, Fleet Street flunkeys with pretensions to being honorary members of parliament, are typical of their profession. Court correspondents fancy themselves as royal retainers, the gentlemen-in-waiting of the press. Editors behave as though they are part of the governing mandarinate, accepting knighthoods as orders of merit instead of badges of shame, rewards for having prostituted their organs to this or that party.

An independent editor like Harold Evans or Andreas Whittam Smith is a rarity, to be sneered at even by his own colleagues for adopting an inflated, American view of his responsibilities. Constrained by a tradition of subservience and habits of self-censorship, most journalists do not take their role as part of the fourth estate seriously. Indeed, an English dictionary defines this expression as a "satirical term for the press." Recently, Chris Moncrieff, one of the most respected parliamentary correspondents, said bluntly, "I think we are part of the entertainment industry at the downmarket end. We do it for the money. And if that serves the public at the end of the day -- well, that's a bonus."

The British press holds itself in such low esteem because it lacks a proper constitutional function. Humiliated at every turn, it has every incentive to behave badly -- like a juvenile responding to disapproval with delinquency. The tabloids are are the recidivists of British journalism, unscrupulously invading the private lives of ordinary people, dealing in barely disguised fiction, serving up a diet of scandal, salacity, and sensationalism.

Needless to say, tabloid misbehavior lends weight to arguments for adding to the array of curbs and gags that already restrain media lacking the protection of a First Amendment. The distinguished solicitor Sir David Napley, for example, has called for "a disciplinary body empowered to suspend journalists from the practice of their craft." In 1989 a right of reply bill and a privacy bill were presented to parliament, the latter by an MP who was subsequently censured by a Commons select committee for not fully declaring his commercial interests. When these bills failed, Home Office Minister Timothy Renton grandly put newspaperdom "on probation," proposed to look into "abuses of press freedom," and declzred that Fleet Street has a year to "clean up its act." Such threats do not seem incongruous in Britain, despite reports like that issued this past June by Amnesty International titled United Kingdom Human Rights Concerns, it anathematized official secrecy, especially that surrounding police and military investigations. At a time when glasnost is triumphing in Russia and Eastern Europe, the British government can contemplate new restrictive measures with every confidence that the public will support them.

This attitude is all the more strange when one considers the existing legal restraints on free expression. The libel laws, whereby the plaintiff does not have to prove loss or damage but the defendant must prove truth, are still the most important restriction on the British press. They are, as Northcliffe's nephew Cecil King said, an "absolute nightmare" for journalists. Because of the fear of astronomical damages, King added, "inefficient hospitals are not named, doubtful share flotations pass without comment,and some fraudulent individuals go unexposed until it is too late and someone has been hurt." What is more, newspapers tend to pussyfoot about politicians. Earlier this year a Thatcherite MP named Edwina Currie mulcted The Observer of L5,000 in the courts for what appeared to be some exceedingly mild animadversions. The press will not listen more carefully to its lawyers. These are men so cautious that, in a review which I recently wrote for the Observer of three biographies of Robert Maxwell, they advised against quoting the conclusion of a published Department of Trade report which stated that he could not "be relied on to exercise proper stewardship of a publicly quoted company."

In the case of confidential documents, of course, British law has often been used to prevent publication, notably in the case of the thalidomide saga. Judicial censorship is permitted if the "balance of convenience" supports the plaintiff, so nothing like the Pentagon Papers could conceivably be published in Britain. The press is also shackled by the 1981 Contempt of Court Act, which affords judges wide powers to prohibit or postpone the reporting of evidence given before tribunals of all sorts and threatens journalists with imprisonment if they approach jurors after a trial.

The combined effects of this act and the confidence laws were revealed recently when a young reporter for The Engineer, Bill Goodwin, received a tip that the computer company Tetra was seeking refinancing. When he called to check, Tetra's lawyers, using a gagging right established during the infamous Spycatcher case, obtained an injunction (distributed by fax) preventing all publication. Tetra then began a court action to discover the story's origin, basing its case on breach of confidence. Under the law a journalists is guilty of contempt if he refuses to disclose his source in cases concerning the "interests of justice or national security or the prevention of disorder or crime" -- substantial and elastic areas. Tetra argued that the leak might have involved a stolen document and, although the company's business had suffered no loss, the Law Lords fined the unyielding Goodwin L5,000. He is appealing to the European Human Rights Commission.

Article 10 of the European Convention of Human Rights, which declares that freedom of expression should not be limited unless strictly necessary to preserve an overriding public interest, is the nearest thing that Britain has to a First Amendment. But in practice it is remote and ineffectual. What count are the immediate curbs. These range from draconian punishments which parliament can impose on journalists almost at whim to possible prosecution for blasphemy (as Gay News found to its cost in 1977). Not only can the Home Secretary prohibit the transmission of any item or program by the BBC (most frequently exercised over the Irish issue); he is also empowered to send troops to occupy its studios.

The broadcasters face many other menaces to their independence -- government control over key appointments, threats to reallocate commercial TV franchises or to freeze the BBC license fee, the notorious ban on Sinn Fein speakers, the extension of the Obscene Publications Act and other laws to the electronic media, and the imposition of the Broadcasting Standards Council (which, luckily, has so far proved about as feeble as the Press Council). No wonder that one of the first acts of John Birt, deputy director general of the BBC, was to rebuke an interviewer for "not being suitably deferential towards politicians." This may sound grotesque, but Birt's attitude has clearly pleased somebody for he has just been designated successor to his boss.

Dozens of statues threaten civil servants with punishment for divulging information to the press, often about matters of public interest like safety failures in underground trains, passenger ferries, and microwave ovens -- all recent cases in which official secrecy has triumphed. The law of copyright is being used inventively to hamper journalists. The "D" Notice system provides for what author Geoffrey Robertson calls "censorship by wink and nod from the Ministry of Defense." Finally, there is the 1989 Official Secrets Act, which has yet to be tested in the courts. It is less of a catchall than that of 1911, which made everything in an official file (and much else besides) an official secret. But the new act allows the attorney general wide discretion, and there is no public interest defense like that successfully used by Clive Ponting, the civil servant who leaked information about the Falklands war to an opposition MP.

Truth was the first casualty in that war as in all others. The Ministry of Defense was far more worried about the effect that a free flow of information would have on civilian morale at home than on military security in the South Atlantic. It went beyond security matters to interfere with the "tone" of broadcast reports. Naturally it rejected charges of "censorship," talking instead of "clearance" and "vetting." But afterwards the BBC stated that the Ministry of Defense had "come very close to the 'management' or 'manipulation' of news, an idea that is alien to the concept of communication in a free society." Civil servants were impatient with such scruples, frequently telling an American-born correspondent: "This is why you Americans lost the Vietnam War, because you had a free press." Jingoistic journalists of the Beefeater press also took this line. Rupert Murdoch's Sun denounced the BBC's questioning of "the government's version of the sea battles" as "treason."

Exactly the same sentiments and behavior prevailed in the gulf war, where the pool system of reporting made it even easier for the authorities to regulate the flow of information. An added refinement was the pervasive employment of euphemisms like "surgical strike" and "lucrative target" to suggest that technology had robbed war of its horror, a view that the carefully chosen pictures were designed to substantiate. Some British newsmen, such as Robert Fisk of The Independent, were critical of this verbiage andmanaged to escape the military minders. But many appeared to be auxiliaries intent on winning the publications war.

Whither now? Opposition politicians in Britain have long been pressing for open government on American lines in the face of intransigence fromMrs. Thatcher who, as a colleague remarked, "did not believe in open government for the Cabinet, let alone anyone else." With the advent of John Major, who is desperate to polish up his party's image before the next election, it seemed that a thaw was in prospect. Initial leaks about his much-vaunted Citizen's Charter, which was characteristically being formulated in secret, promised greater freedom of information. It now emerges, however, that Major has drawn back from the brink and that a public right to know is being vouchsafed in his Citizen's Charter.

Perhaps next time (unlike last time) a victorious Labour party will fulfill its pledge to introduce a Freedom of Information Act. If so, Westminster and Whitehall will undoubtedly conspire to frustrate its provisions. The culture of censorship is so deeply rooted in Britain that it can hardly be changed except by constitutional guarantees of free expression. However, a written constitution isstill a long way off, and even when it appears, the price of liberty will be eternal vigilance, as American experience shows.

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