THE WRONG SOLUTION TO THE WRONG PROBLEM
December 1, 2012 § 33 Comments
Everybody believes in press freedom. But what is it to have a free press? And how do we protect it? These are the questions raised by the publication of the Leveson report into the ‘culture practice and ethics’ of the British press and the debate that has both preceded and followed it.
In his report, Lord Justice Leveson talks of his ‘outrage’ at the ‘havoc wreaked on the lives of innocent people’ by the unethical and criminal behaviour of sections of the British press. He dismisses the idea that the press can clean up its own act. He proposes, instead, an independent regulatory body, underpinned by law, to police press standards and impose sanctions including, apparently, up to £1m fines. Newspapers would be free not to join the regulatory body. But those that refused to would face sanctions, including the possibility of ‘exemplary’ damages in court if found guilty of misconduct.
Many, including many advocates of free speech, have welcomed the report. David Cameron has caused outrage by questioning the wisdom of underpinning press regulation with statute. I have little sympathy for Cameron’s predicament. His record on civil liberties is abysmal, and the political difficulties in which he now finds himself are of his own making. Nevertheless, I too reject the core of the Leveson argument.
According to Leveson, his proposal ‘is not, and cannot be characterised as, statutory regulation of the press’. That, it seems to me, is sophistry. I regard the US First Amendment as the touchstone of free expression and of a free press. Any law on the press or on speech must, in my view, pass the First Amendment Test. That is, would such law survive or fall foul of its constitutional protection? The answer in this case is that it would fall foul of it.
The Leveson report tries to allay fears that its proposals might undermine free speech by insisting that any new law that regulates the press must also enshrine ‘a duty on government to protect the freedom of the press’. Many have presented this as a British version of the First Amendment. The First Amendment does not, however, impose ‘a duty on government to protect the freedom of the press’. Rather it constrains government from interfering in free expression. Congress, it states, ‘shall make no law abridging the freedom of speech or of the press’, a very different approach to that taken by Leveson and his supporters.
The First Amendment has provided not just a test for laws on liberty. It has also helped establish a telling division among civil libertarians. Those steeped in the First Amendment tradition have mostly opposed the Leveson proposals; those who draw more on ‘European’ traditions of freedom and liberties have welcomed them. Carl Bernstein, the veteran US reporter who with Bob Woodward broke the Watergate scandal, insisted on Channel 4 News that criminality should be a matter for the law, but that the law should not have a place in regulating non-criminal behaviour:
The answer is to find the proper way to put [journalists] in jail for the horrible offences that they are guilty of, not to try and restrain free speech, freedom of the press. That is going to come back and bite British democracy in the ass because that is what this is about. It’s an easy answer to a tough problem.
Clive Stafford Smith is perhaps Britain’s leading civil libertarian. He spent years in the USA defending death row prisoners. More recently he has acted for Guantanamo Bay detainees, been a harsh critic of the ‘war on terror’ and is a director of human rights organization, Reprieve. He, too, is appalled by both the Leveson proposals and much of the response to it:
Maddening that (il)Liberal Dems and Labour want to constrain the press with a statute; what are Cleggster and Miliband thinking?
The New York Times is a long-standing critic of Rupert Murdoch and of his journalistic and business methods. The Leveson proposals, it wrote, ‘seem misplaced, excessive and potentially dangerous to Britain’s centuries-old traditions of a press free from government regulation.’
Why, then, do so many liberals and civil libertarians take a different view and support Leveson? The argument for press regulation rests on two main claims. The first is the belief that journalism needs to be regulated like other professions such as medicine and the law. Only then, many argue, can unethical behaviour be controlled. The trouble is, journalism is not like any other profession. Doctors and lawyers provide a service, for which they must be highly trained and licensed by the state. Doctors and lawyers rightly comprise a tightly controlled club from which the unethical and the incompetent can be excluded. The state necessarily plays a role in deciding who can and cannot practice medicine or the law.
Journalism is more like a public conversation than a service. The relationship between journalists and the public is very different from that between a doctor and a patient or a lawyer and a client. It is not experts or the state who are the ultimate judges of whether a piece of journalism is good, or a journalist ethical, but the public itself. Doctors or lawyers can be struck off by their professional bodies for malpractice. But how do you strike off a journalist? As Padraig Reidy of Index on Censorship has put it:
You may be able to sack her, but what if she starts to blog, to Twitter, to produce her own paper?
It is, in other words, both practically impossible and politically undesirable to treat a journalist as one might a lawyer or a doctor. Journalism, in Reidy’s words, is not simply a profession but ‘one way in which people can exercise their right to free expression’. The question of journalistic ethics is vitally important and needs to be tackled. But it cannot be tackled by pretending that journalism is like any other profession, or through greater regulation, especially regulation underpinned by the state.
The second reason for which many demand press regulation is the overweening power wielded by press newspaper owners. The global media empire of Rupert Murdoch, in particular, has generated much fear and loathing. It is true that Murdoch’s command over large swathes of the print and media industries has afforded him great influence. But we should neither exaggerate that power, nor see it as unique. There is a long history of powerful press barons, particularly in Britain, who have tried to influence politicians and shape political life. Old-fashioned British newspaper owners, such as the Lords Beaverbrook and Rothermere, who dominated the industry in the first half of the twentieth century, possessed far greater social and political power than Murdoch does today. They were also far more willing to interfere in political life. In 1931 Beaverbrook and Rothermere put up their own candidate in a parliamentary by-election in Westminster St-George to show their displeasure with the Conservative Party leader Stanley Baldwin, whom they had come to regard as not sufficiently their poodle. Can you imagine the response if Murdoch attempted a similar stunt today? But even these old-fashioned barons possessed less power than they, or we, like to think. Despite a ferocious barrage of propaganda from the Beaverbrook/Rothermere stables, their candidate lost; the official Tory took almost 60 per cent of the vote. Fourteen years later, the Tory-leaning press launched another ferocious propaganda campaign – this time in support of Winston Churchill’s Conservative Party and against Clement Attlee’s Labour Party at the general elections. Labour won by a landslide, with 393 seats to the Tories’ 197.
What is different today is not that the media has become more powerful, but that political institutions have become far weaker. The authority of politicians has plummeted in recent years and the public has become increasingly disengaged from politics. The role of the media has expanded to fill the gap left by the hollowing-out of public and political life. In the past, the political class spoke from a position of strength. Its social authority was unquestioned and it possessed immense self-confidence in its ability to rule. Today, the weakness of the political class, the erosion of its self-confidence, the bankruptcy of its ideas – all ensure the greater influence of a figure like Murdoch. The media has assumed its position of unprecedented influence almost by default.
And yet, in reality, caught between a plummeting readership and an expanding Internet, the press is probably less powerful today than it has been for more than a century. In the 2000 pages of the Leveson report there is but one page on the Internet or social media, which it dismisses as an ‘ethical vacuum’. It is a striking blindness, but not untypical of the report.
The press is not only weaker than before, it has also become less willing and able to play its traditional role of ‘speaking truth to power’, happier to chase celebrities than hold the powerful to account, desperate to pass off gossip as news. In part, this process has been driven by many of the same social developments that have undermined the authority of political institutions. The media, as much as the public, have become disengaged from the political sphere. Newspapers have a more intimate relationship with politicians but less engagement with politics.
The promotion of gossip has, for newspapers, become a cash machine. What drives the gossip machine, however, is not just profit but also the cultural blurring of the line between the public and the private. The spewing out of the private into the public is not just a tabloid issue but a much broader cultural phenomenon. From misery memoirs to serious journalists probing the drinking habits of politicians, from Facebook users revealing to the world the most intimate aspects of their lives to CCTV cameras on every street corner, from bedroom webcams to reality shows that trade on humiliating contestants – our whole culture seems uncertain about where the public ends and the private begins. There is, of course, a big difference between voluntarily offering up intimacies and such intimacies being made public against people’s wishes. Nevertheless, the tabloids have coarsened our culture largely because an increasingly coarse culture has provided new opportunities for the tabloids – and not just for the tabloids. Tackling the issue of press ethics, in other words, restraining gross intrusion into people’s privacy, means far more than simply reining in the newspapers; it means transforming the culture within which they operate.
The real indictment of the press today is not that it is too powerful but that it is too cowardly. It fails to probe deeply enough, it is unable to ask the difficult questions of those in power, it refuses to challenge received wisdom. In that sense the problem with the press is not that it is too strong, but that it is too weak. Nothing in the Leveson report addresses that issue. Indeed its proposals will only help accentuate the weaknesses of the press. The trouble with a more regulated press is that it is likely to become more, not less, tame and conformist, less willing to get itself into trouble, less prepared to confront those who hold power. The Leveson report provides the wrong solution to the wrong problem.
Perhaps as deep a problem as the Leveson proposals are some of the responses to the report. When David Cameron expressed misgivings about the statutory component, there were cries of ‘betrayal’, claims that he had ‘hung the victims of crime out to dry’, that he had ‘sided with the Fleet Street bullies’.
But why should a Prime Minister, or any politician, accept in full (or even in part) the Leveson Report? What is wrong with dissenting from its proposals, debating it, putting its conclusions under scrutiny? Is that not the function of Parliament? What, many Leveson supporters have asked, was the point of spending so much money and time on a public inquiry if its proposals were not going to be accepted in full? One might equally ask: what is the point of spending so much money and time on electing MPs if all they are supposed to do is rubber stamp inquiry reports? It is an argument that tells us much about attitudes to democracy these days.
I fully understand the anguish of the victims of outrageous press intrusion and malpractice, their desire for newspapers to be reined in, their anger at those who may not fully endorse the Leveson proposals. But however much our sympathies are with them, the fact that someone is a victim does not make him or her right, or give them greater moral authority or political insight. A political campaign, especially a campaign for a ‘free and accountable press’, should surely take a more considered position. What infuriates me is not the claim that statutory underpinning of press regulation is necessary. That is a legitimate argument, even if it is, in my eyes, mistaken. What infuriates me is the claim that this is the only legitimate argument, that to dissent from it is an act of moral cowardice, of betrayal, and that the only reason one can oppose Leveson is if one is in the pocket of Murdoch or the Mail, if one has crossed over to the other side.
This is the kind of emotional and moral blackmail that has long been the currency of many a tabloid campaign, and the source of many of their excesses. It is ironic that the Hacked Off campaign and its supporters should indulge in it too. But perhaps not so surprising. For the moralising of debate has long spread far beyond the tabloids, and become central to much of political life. The consequence has been the development of a ‘You can’t say that!’ culture, where to dissent from the consensual line is regarded as a moral outrage rather than as a democratic right.
And that is what is worrying about the Leveson proposals themselves. The problem with the Leveson report is not that it imposes or implies state control of the press. It will not involve politicians directly interfering in newspapers or censoring material. But the threat of regulation, and of enforcement of sanctions for wrongdoing, will inevitably create a more conformist press, less willing to challenge, to dissent, to be offensive. To those who insist that the regulator will wish to curb only the obnoxious practices by which we are all appalled, I would suggest that they study the history of every recent law restraining liberties. From the Public Order Act to the Regulation of Investigatory Power Act (RIPA), every such piece of legislation has, once on the statute books, vastly expanded in scope, and been used for restricting speech and actions far beyond that for which it was originally intended; collectively, this expansion has had a chilling effect on liberties.
‘The image of Murdoch, Lord Rothermere, Paul Dacre and the Barclay brothers wrapping themselves in the flag of liberty is’, Hacked Off’s Brian Cathcart observes, ‘as repulsive as it is amusing’. Indeed it is. But the reason that the likes of Murdoch, Rothermere, Dacre and the Barclays brothers are able to do so is that liberals and radicals have already cast away that flag. They have vacated the space of free speech, allowing reactionaries to occupy it. In this the debate about press freedom mirrors that of free speech more broadly. There, too, reactionaries like Dutch politician Geert Wilders and the French Front National leader Marine le Pen have been able to promote themselves as martyrs to free speech. Why? Because liberals and the left have effectively given up on freedom of expression, taking to demanding more regulations and restrictions on unacceptable speech. Let us not repeat that mistake again.