Media and Law

Between Free Speech and Censorship

Mathieu Deflem, Derek M.D. Silva, Mathieu Deflem, Derek M.D. Silva, Mathieu Deflem, Derek M. D. Silva

• Publisher: Emerald Publishing Limited
• Year: 2021
• Print ISBN: 9781800717305
• eBook ISBN: 9781800717312
• Topic: Business
• Subtopic: Digital Marketing
• Index: Business

In Media and Law: Between Free Speech and Censorship, Mathieu Deflem and Derek M.D Silva have gathered an interdisciplinary team of leading experts to make a valuable contribution to the existing literature. This volume explores free speech and the control thereof from both a political as well as cultural lens. These topics have once again moved center stage in scholarly as well as popular discussions on what must, should, and should not be said in the public sphere of ideas, opinions, and tastes. In a world of alternative facts, fake news, gender politics, company self-censorship, edited art, hate speech, and career-ending tweets, the chapters in this volume make a timely contribution.

PART I

SPACES AND INSTITUTIONS OF FREE SPEECH

CHAPTER 1

FIGHTING CENSORSHIP: A SHIFT FROM FREEDOM TO DIVERSITY

Anthony Löwstedt

ABSTRACT

Purpose – It may be time to reformulate the rejection of censorship. Freedom is not the only opposite of, strategic resource against, or antidote to, censorship.

Methodology/Approach – This chapter argues against censorship with a Kantian-normative approach (the deontological position of the categorical imperative), using conceptual analysis, constructivism, and international legal scholarship, from the standpoint of a humanity-wide duty to safeguard and promote cultural diversity and biodiversity. Increasingly visible weaknesses of the argument against censorship from the utilitarian standpoint of freedom, a negative argument, can be avoided in this way.

Findings – Especially the neoliberal approach to freedom has no provisions against corporate and only little against copyright censorship, which are both becoming increasingly acute. Diversity, on the other hand, both biological and cultural, is argued to be instrumentally good, and intrinsically good, but the latter only if balanced by equality of basic rights.

Originality/Value – The resulting moral and legal imperatives are to support, safeguard, and promote diversity, and thus to minimize both censorship in culture and selection/elimination in nature, but only to minimize them, simply because they cannot themselves be eliminated. It is impossible to eliminate elimination. This becomes clear when one considers self- and soft censorship. At least in the wide sense, censorship is inevitable – but sustainable development is impossible without strict minimization of censorship.

Keywords: Diversity; freedom; media; censorship; neoliberalism; sustainable development

INTRODUCTION

In the “post-truth” era, the liberal, utilitarian, and consequentialist justification of freedom of speech and expression is not (yet) crumbling, but it is weakened. Free markets and representative nation-state democracies have spread across most of the world since the end of the Cold War, but semi- or fully fascist governments and leaders are now again being elected around the world, as in Europe after World War I, with the public sphere as a site of entertainment, cults of personality, and conspiracy theories scapegoating the innocent. John Stuart Mill’s classic argument against censorship, that truth and progress will prosper from fair and healthy competition in which all voices are given a chance to be heard still holds (Mill, 1989 [1859], pp. 20–22). But there are now more than six times as many people alive as in Mill’s time, so there is even less time for all to be heard. Some inequalities have also increased since then. In any case, the media are not neutral arenas, but uneven playing fields, practicing their own novel forms of censorship, filtering, and marginalization. In the age of electronic media especially filtering and marginalization have taken over roles played by hard censorship in previous societies and civilizations. Media users often do not care much for the truth, but rather for receiving and providing entertainment, making money, rewarding exposure and vanity, peddling influence, and confirming bias and prejudice.

Mill’s argument against censorship may only hold for an abstract, ideal society, and a utopia that can never be realized (Danaher, 2018; Stanley, 2018), so what to do with the here and now? In this chapter, a complex concept of diversity, including biodiversity, cultural diversity, and media diversity, will be presented as an ideal that can alternate with and complement the concept of freedom, including the freedoms of opinion, information, worship, speech, and expression, with which censorship has been contrasted traditionally.

We are used to opposing censorship with freedom, as, for instance, in the text of the First Amendment of the U.S. Constitution (1791): “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” or §19 of the Universal Declaration of Human Rights (1948):

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Originally, however, the concept of freedom was not necessarily an inclusive one. The land of the free was there for the free; but the unfree were just as essential. The slaves and the dispossessed, however, were not meant to enjoy that land or its provisions. Similarly, the very first laws banning censorship, in Sweden (1766) and Denmark–Norway (1770), were not introduced for inclusivist reasons. Rather, “[i]n all three countries, leaders realized that they were going to have to share power and govern by manipulating and steering public opinion rather than suppressing it” (Laursen, 2005, p. 100).

The modern Western concept of freedom is to a large extent an elitist concept, one that has roots in a Graeco-Roman concept of freedom that also takes for granted slavery, as well as gender inequality and other forms of oppression indeed considering them as inevitable. There was a widespread agonistic, zero-sum competition approach to freedom in Classical Greece, with a progress-less belief that only a fixed quantum of freedom is possible and only a small number of people, at best only Greek men, can have some (Brunkhorst, 2000; Green, 1998, pp. 183–184).

There was, however, also a humanistic and egalitarian current, for instance in Stoicist ethics, which contradicted the more popular Aristotelian–Platonist–Epicurean elitism (Bloch, 1986, pp. 12–13; Werner, 1992, p. 11). The radical egalitarianism of early Christianity also contributed to a humanist current in later Western liberalism (Brunkhorst, 2000).

Thus, there are two ideals of freedom in the history of Western civilization: one exclusive – freedom for the chosen few; and another inclusive – freedom for all. The same word was used by idealists and activists, often with contradictory meanings and sometimes with mutually supporting ones, such as in the American and French revolutions of the eighteenth century, which contributed to the extraordinary success and popularity, and even a quasi-religious status of the term, especially in societies based on slave–labor economies, such as ancient Athens and Rome, western European colonies in the Americas, South Africa, and elsewhere, the independent United States, Brazil, Cuba, and western Europe itself. Until now, “freedom” has dominated as the opposite term and opposite concept of censorship, among many other evil or bad things, such as dictatorship, injustice, arbitrary rule, and oppression (De Dijn, 2020).

But earlier civilizations also developed arguments and attitudes against censorship, among them ancient Egypt. A case in point is The Teachings of Ptahhotep, a secular, ethical text composed around 1850 BCE (at the latest), which among other things suggests finding a balance between the right to privacy with the duty to find out and tell the truth, rather than with the principle of freedom of expression (Löwstedt, 2019, pp. 501–503). Ptahhotep also negated suppression of speech with what appears to be a right to speak truth to power:

If you are a man who leads,

Listen calmly to the speech of one who pleads;

Don’t stop him from purging his body

Of that which he planned to tell. (Ptahhotep, 17; in Löwstedt, 2019, pp. 498–501)

Thus, there are several possible alternatives to the concept and ideal(s) of freedom that have been and can be used in the fight against censorship. The principle presented here is yet another one: the core concept of media diversity, situated within a wider context of cultural diversity, which, in its turn, is situated within an even wider context of biodiversity.

VARIETIES OF CENSORSHIP

Censorship may be analyzed as existing in three forms. Hard censorship comprises prohibition, law enforcement, destruction of messages, of means of message production, dissemination and reception, violence against communicators, including killing, torture, detention, threats, fines, and extortion. It is usually carried out by states and other attempted monopolies on violence, such as vigilante, terrorist, and organized crime groups.

There are, however, some aspects of it that do not appear as hard as others, for example, selective placements of government advertisements in media that are less critical of the government. Still, critical media can be bled out of existence slowly in this way. I would refer to this as “indirect hard censorship,” rather than “soft censorship” as other authors have done (e.g., Lansner, 2014), since the long-term consequences can be the same as direct hard censorship. Forbidding the use of certain languages, such as the various bans on Kurdish in Turkish broadcasting, print, and education until 1991 and beyond (Associated Press, 2002), are also seemingly softer forms of hard censorship. They seem to be only censoring form and not content. But they can be just as destructive. Corporate censorship can also be hard, especially through threats, extortion, firing, and chilling effects, as for example in several media outlets throughout News Corp, the Murdoch empire (Jukes, 2012). In this sense, corporations can act or function as laws unto themselves, as “monopolies of silence,” and as effective censors equivalent to assumed state, terrorist, or mafia monopolies on violence.

Soft censorship proper consists of editorial rejection, deletion of posts, accounts, and content editing, but no penalties beyond that, no fines, no prison sentences, and no direct physical harm. It is now typically carried out by privately-owned, profit-seeking companies, such as book and magazine publishers, newspapers, broadcasting stations, cable companies, internet service providers, search engines, and social media companies.

Self-censorship is perhaps the most pervasive of all. We stop ourselves from sharing, writing, saying, remembering, or even thinking things, we correct ourselves, largely because of learned mechanisms. Many of these mechanisms may be unconscious, taken over from previous generations, from authorities, employers, peers, and the media. At least morally, however, the author herself or himself is ultimately responsible.

According to Skjerdal (2010) self-censorship is prompted by commercial and economic pressures as well as political ones. Clark and Grech (2017) reported increasing unwarranted interference, fear, and self-censorship among a sample of 940 journalists in 47 Council of Europe member states and Belarus. Whereas a majority of journalists experienced severe unwarranted pressures as successful in gagging their own reporting, some 36 percent of respondents replied “…that the experience made them more committed to not engage in self-censorship” (Clark &Grech, 2017...

Table of contents

• Cover
• Title
• Introduction: Mediating Between Liberty and Law
• Part I. Spaces and Institutions of Free Speech
• Part II. The Internet as Public Sphere
• Part III. Regulating Speech Across Nations
• Index