Whatever one thinks of Meghan Markle’s interview with Oprah Winfrey, we should welcome her right to speak freely. But that being so, we should also welcome the right and responsibility of the media to report and commentate on Markle.
Considering that interest, Markle and her husband Prince Harry might regret their choice to relocate to America.
Don’t get me wrong, as long as it doesn’t involve wasting taxpayer money (fortunately, the Diplomatic Security Service is no longer providing a protective detail for the couple), I have no problem with the Duke and Duchess of Sussex living in the United States. They are a bit tedious, but Markle’s joining the British royal family was at least positive in terms of genetic mixing. As with many European monarchies, the British royals have a rather limited genetic pool. Harry’s father Prince Charles isn’t exactly a poster child for intellectual dynamism or flourishing charisma. That said, Harry and Markle aren’t likely to enjoy U.S. protections for media speech.
I don’t want to dwell, particularly, on the Oprah interview or TV host Piers Morgan’s ensuing statement that he believes Markle lied in claiming to have considered suicide during her time in Britain. Instead, I want to suggest that Markle is developing a rather unfortunate disinterest in freedom of the press.
It has been widely reported in the British press that Markle made a complaint to ITV over Morgan’s comments. While it’s obvious why Markle would take great offense at Morgan’s words, we shouldn’t make the mistake of regarding her complaint as just that. In Britain, a complaint by the subject of media reporting or commentary can carry coercive consequences for the media. As pertaining to broadcast media of the kind that Morgan’s comments fall under, the OFCOM government regulatory body has the power to impose financial and other penalties on speech that is seen to fall short of broadcasting standards. Markle is aware of this and would have known that her complaint to ITV would be seen by the broadcaster as a de facto threat to complain to OFCOM absent its own disciplinary action. This is almost certainly why ITV demanded that Morgan apologize for his remarks. Morgan has now left ITV’s Good Morning Britain show and is likely to get a lucrative new hosting role on the new GB News channel.
Regardless, Markle’s complaint would rightly not have had the same effect in the U.S. A U.S. broadcaster might have demanded Morgan apologize or be fired, but it would not have to consider facing a body such as OFCOM taking its own action. After all, regulation of the press here is far more relaxed than it is in Britain.
That’s because the Supreme Court has consistently weighed the public interest in media coverage of and commentary about public individuals such as Harry and Markle as far more important than the right of said individuals to privacy or protection from critical speech. And this is far from the first time that Markle and Harry have sought to silence voices with whom they disagree. In January 2020, Harry was rebuked for making a complaint to a British newspaper regulator over the Daily Mail’s reporting on his staged photographs with an Elephant, Rhino, and other animals.
However, sometimes the couple has got their way. In a landmark judgment last month, an English court ruled that the Daily Mail unlawfully infringed on Markle’s privacy when it published her correspondence with her father. Markle reacted to that ruling by observing, “We now know, and hope it creates legal precedent, that you cannot take somebody’s privacy and exploit it in a privacy case, as the [Daily Mail] has blatantly done over the past two years.”
Markle is wrong about that precedent, at least as it pertains to America.
As long as a U.S. media publication did not unlawfully acquire her correspondence, such as by theft, it would avoid consequences for publishing that correspondence. This might not be pleasant for a public figure. Indeed, such publication might even be generally and justifiably considered immoral. But the U.S. system of press freedom exists to ensure that a light is always shone upon those in positions of power and influence. Sometimes this allows for inaccurate or unfair reporting. But the law rests on the understanding that the alternative risks a situation in which media reporting can be cut off or chilled by the dangling threat of a lawsuit. And the costs of the chill can be significant. Had the Sunday Times not been forced to fear the English libel courts, for example, we might not have had to suffer a Qatar 2022 World Cup that was bought with bribes.
Markle might have seen Morgan pushed out. She might have seen British newspapers forced to apologize and fork over hundreds of thousands of dollars in compensation. But the Duchess and Duke are unlikely to find similar future success against American publications.
