A Free and Regulated Press

Defending Coercive Independent Press Regulation

Paul Wragg

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509927258
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

This thought-provoking book provides a systematic, philosophically-grounded reconceptualisation of press freedom and press regulation. In a major departure from orthodox norms, the book argues that press freedom and coercive independent press regulation are not mutually exclusive; that newspapers could be made to compensate their victims, through regulation, without jeopardising their free speech rights; that their perceived public watchdog status does not exempt them; and, ultimately, that mandatory press regulation is not unconstitutional. In doing so, the book questions our most deeply-held, intuitive beliefs about the press and its role in society. Why do we say the printed press has a duty to act as a public watchdog when there is no legally enforceable apparatus by which to ensure it does? Why does government constantly recommend that the press regulate itself when history shows this model always fails? Why do victims of press malfeasance continue to suffer needlessly? By deconstructing the accepted view of press freedom and mandatory regulation, this book shows that both are deeply misunderstood. The prevailing notion that the press must serve the public is an empty relic of Victorian ideology that is both philosophically incoherent and legally unjustifiable. The press is obliged to make good, not do good.

PART 1

Rationale

1

Unity in Press Freedom Theory

I.Introduction

Ostensibly, there are multiple, conflicting theories of press freedom in the established academic literature. Yet the image this creates, of a concept comprehensively formulated by a means of an elaborate, rigorous, contested process, misleads as to the nature and scope of the press freedom debate. For, in truth, that debate is happening only at the margins – and relates, as we shall see, to the level of protection that ought to be afforded to press freedom compared to an individual’s right to free speech. At the core, there is no debate. There is no rigorous scrutiny or contested treatment of press freedom’s normative make-up. There is only the prosaic assertion that the justification for press freedom is teleological and for individual free speech, non-teleological. This teleology is said to manifest in the specific functions the press is expected to fulfil – to act as a ‘public watchdog’, as a check on power (ie, the fourth estate), and to provide political education to the masses (and so enable informed democratic participation). Consequently, this teleology is taken to create ‘duties’ and ‘responsibilities’ – that is, obligations imposed upon the press to realise its purpose – which the commentary uses to delineate the parameters of the press’s right to free speech. This arrangement is taken to be so obvious and unremarkable as to be axiomatic.¹ Certainly, we find little resistance to it in the established literature.

The origins of this view can be found in press freedom’s history (from the late eighteenth century onwards). But, as will be shown, in section three, the modern view is a corruption of that tradition, for when scrutinised we see not one but three distinct understandings of it in this period, arising from three phases in its history. These three traditional views are only loosely connected. In the first period, the romantic phase, the teleological view is merely foreshadowed: press freedom is not an end but a means by which the electorate may monitor government and so protect its property interests. In this way, press freedom is valued for the benefits it affords its audience. In the second period, the ideological phase, the teleological view emerges: the ruling Liberal party sees the press as the means by which to provide the newly enfranchised masses with a political education and so enable democratic participation. In the third period, the critical phase, the teleological view is realised by inversion of the arguments in favour of press freedom. What was once a benefit is now a burden. The plea, from press to state for protection because of the public good it does, becomes a demand, from state to press that protection is contingent on it doing public good. Thus, in this period, this teleology takes on added political significance, such that the state asserts its ability to investigate press standards by means of public inquiry. What we find, though, is that modern thinking has adopted these views from the ideological and critical phases, but uncritically: it has not recognised that the ideological understanding had been discredited in its own time nor that the critical phase has no viability as historical understanding. That these understandings have thrived despite their implausibility is remarkable. This does not make them illegitimate, of itself, but demonstrates the need for serious reconsideration.

II.The Modern View

A.Introduction

The uniformity in modern press freedom thinking is apparent from the nature of the debate. Commentators do not dispute what press freedom means – or stands for – but how its goals (telos) are to be secured. In Siebert, Peterson and Schramm’s classic text Four Theories of the Press,² the division is along political lines, relating to the different political goals arising in authoritarian, Soviet communist, and democratic states. It is not disputed that the press, in each, serves political goals, only what these goals mean for newspaper content. Of specific interest, for our purposes, are the two competing models in the democratic context, which they label the ‘libertarian’ and ‘Social Responsibility’ theories. Contemporary commentators, though, rarely refer to these theories by name, but they do adhere to their central tenets. Instead, they tend to say that there are three theories of press freedom³ (all of which we find in SRT and libertarianism): (i) the traditional view that press freedom requires no special free speech guarantee from the state, because the constitutional apparatus that protects individual rights to free speech is sufficient to safeguard the press’s public watchdog role; (ii) the institutional view that press freedom is different and requires a higher threshold for state interference because of the vital constitutional role that the press plays; and (iii) the instrumental view that press freedom requires special privileges and immunities only when the democratic values underpinning it are especially at stake.⁴ The instrumental view thus mediates between the traditional and institutional view by agreeing with the former that special free speech rights are not always required for the press but, in agreement with the latter, that the press is more significant at times than the individual is in enabling democratic values to thrive. Helen Fenwick and Gavin Phillipson have introduced a fourth perspective, which is that special burdens (as well as benefits) may be imposed upon the press to ensure the best expressive environment for the audience.⁵ In this way, the ‘specialness’ of press freedom cuts both ways.

Superficially, at least, the traditional view presents the greatest opportunity for departure from the teleological view of press freedom. Yet, closer inspection reveals that there is no dissent from the orthodox conception, for adherents do not say that individual freedom of speech and press freedom are the same: quite the opposite, they emphasise the differences. What they do say, though, is that differential treatment in law will not serve the press in its fulfilment of its function. Thus Willian Van Alstyne says that no good can come from the arrangement: ‘To trade away that protection [equivalence] for some few bits of privilege, purchased at the price of fastening fiduciary burdens upon every newspaper in the country’ represents a very bad bargain.⁶ Similarly, David Lange does not argue against the purposive notion of press freedom; his concern is simply that individual freedom of speech will ‘wither’ if treated as a subordinate to press freedom.⁷ Perhaps the greatest proponent of the equivalence model is Eugene Volokh who has argued, amongst other things, that the First Amendment’s reference to the press distinguishes not speakers but modes of speech and so means no more than the right of all to use technologies to disseminate information and ideas.⁸ In doing so, he does not deny the instrumental significance of the press, he only disputes that the Framers intended to provide an institutional guarantee; all they meant to do, he says, is to recognise the different modes of disseminating information and ideas (ie, by speaking and by publishing).

The following sketches out the uniformity in press freedom thinking which, as will be seen, can be found in both the political and legal commentary of the modern period. These views crystallised in the decade between the mid-1970s and 1980s. This was a period of intense academic debate which witnessed a resurgence in press freedom scholarship. The easiest explanation for this is the marked social consciousness of the 1960s and 1970s coupled with the increasing disbelief in the power of the market to resolve social problems.

B.Political Commentary

Despite their different philosophical bases, we can see in Habermas’s discourse theory⁹ and Rawls’s political liberalism¹⁰ the mature statement of the 1970’s politically left-leaning ideology (albeit it was not until the mid-1990s that these positions were fully developed in Between Facts and Norms and Political Liberalism). In Habermas’s system, the function of the press converges, to some extent, with the obligations of the individual (a duty of civic-mindedness to participate willingly, rationally, and emphatically in the deliberation and formation of public opinion), with both playing a combined role in deliberative politics.¹¹ Whilst political institutions themselves represent ‘strong’ forms of public debate and opinion-formation (because the public cannot ‘solve problems on its own’),¹² civil society is an important, though weaker, source by which social problems are identified and publicised. In this way, we see in Habermas all that is good in Kant and German Idealism. The press plays such a critical role in this that, Habermas argues, certain limitations should be placed upon it. First, from an internal perspective, the press ‘ought to understand themselves as the mandatary of an enlightened public whose willingness to learn and capacity for criticism they at once presuppose, demand, and reinforce.’¹³ Consequently, from an external perspective, ‘the power of the media should thus be neutralized and the tacit conversion of administrative or social power into political influence blocked.’¹⁴

Like Habermas, Rawls emphasises the importance of civic-mindedness in his account of democracy. There is a need for society to take their political education seriously so that they can weigh up the competing claims by candidates for election.¹⁵ Whilst press freedom plays a less conspicuous role in his account, nevertheless its contribution is significant to ensure citizens ‘have the means to be informed about political issues.’¹⁶ We can better understand Rawls’s position, if we see it through Dworkin’s interpretation of the First Amendment. Like Rawls, Dworkin says that since greater access to information enables better decision-making about the good life, the power afforded to the press needs careful handling. Yet, he also says that press freedom cannot be justified entirely by marginal gains in audience welfare alone since that would jeopardise other important social norms, like fair trials, confidentiality, and national security, and thus the craving for greater power and privileges by the press must be weighed against the decrease in democracy that would result in granting such powers.¹⁷

Latterly, Onora O’Neill, echoing Habermas, has argued that the public needs a press that provides ‘adequate communication’ ...