On Finland, the United States, and the freedom of information and of the press

Every year, Reporters Without Borders, a Paris-based organization, ranks every country in the world based on the degree to which it protects and defends freedom of information and freedom of the press. In 2016, the nation ranked as the most protective of these values was Finland. The decision came as no surprise. It was the sixth year in a row that Finland had been so honored. In 2016, the United State finished an anemic 41st in the rankings due to the Obama crackdown on whistleblowers. In 2017, Finland ranks as number 3, with the United States falling even lower to number 43.

For Americans schooled in First Amendment lore (and law), such rankings, are, at best, counterintuitive. English journalists, for example, frequently bemoan the absence of a legally enforced First Amendment in their country. When they are able to do so, they seek the protections of American law. When the Guardian obtained highly classified American documents from Edward Snowden, it prepared and at least initially printed all its stories through its American publication. As Alan Rusbridger, the paper's editor, explained, "[a] written Constitution, the First Amendment and the Supreme Court judgment in the Pentagon Papers Case in 1971, have all played their part is establishing protections that are lacking in the UK."

But the U.K. finished three rungs higher than did the U.S. in the RWB rankings. And Switzerland, which RWB itself acknowledged has criminalized the publication of leaks of "official discussions" involving banking, finished with a number 7 ranking.

Of course, all such rankings are imprecise and subject to easy dismissal or ridicule. Ask any journalist in Slovakia, which punishes defamation with jail sentences of up to eight years, how proud they are of their nation's number 12 ranking. But it is Finland to which I want to return, precisely because it is not only a truly democratic nation which takes freedom of the press seriously but a nation whose history reflects that commitment. It was Finland (as well as Sweden) that enacted the world's first freedom of information laws in 1776, the same year that Thomas Jefferson labored over the American Declaration of Independence.

Precisely because Finland is worthy of kudos for its protection of free expression over the years, it is all the more interesting what it does not protect. When Susan Ruusunen, a former girlfriend of Finnish Prime Minister Matti Vanhanen, wrote a tell-all book in 2007 about their relationship while he was in office, the public prosecutor commenced an action claiming that her revelations about the sexual activities of the prime minister and of the feelings of his children violated Vanhanen's privacy. A judgment was entered against her on that ground by the Finnish Supreme Court and was upheld in 2014 by the European Court on Human Rights.

In a 2012 case, right-wing Finnish political leader Jussi Kristian Halla-aho was convicted of the crime of "inciting hatred against an ethnic group" for allegedly defamatory statements he made about Islam. One was said to have mocked immigrants from Somalia for living off welfare and stealing; another compared Islam to pedophilia. In a ruling of the Supreme Court of Finland, Halla-aho was fined and ordered to remove the offending statements from his blog.

What is most striking when looking at both cases through American eyes is how clear it is that both decisions would have been decided entirely differently, and in a far more speech-protective manner, in the United States. A privacy action brought by, say, Bill Clinton for over-the-top graphic journalistic coverage of his misbehavior with Monica Lewinsky? Or, if she had written a graphically detailed book of her sexual activities with him (which, to her enduring credit, she did not) a lawsuit by him against her? Or consider a hate speech criminal prosecution of, say, Donald Trump for his repeated defamatory comments about Muslims and Mexicans? Any such litigation would plainly be unsustainable here as a matter of law.

Perhaps as important, the very commencement of such litigation would have been so unthinkable that sustained public condemnation would have inevitably followed. Imagine the public mockery of Bill Clinton if he had commenced such a lawsuit. Or the disbelief and anger at any prosecution of and attempt to silence Trump for his speech, however odious, when he was seeking the presidency.

All of which is a way of saying that ranking nations based on their adherence to principles of freedom expression is not easy. It is one thing to pick the world's worst offenders—Eritrea and North Korea can take their yearly bow for that honor—but quite another to decide which nation shall receive the first slot and which the 41st.

[Excerpted, by permission of Yale University Press, from "The Soul of the First Amendment" by Floyd Abrams, © 2017.]