Monday 11 July 2011
British prime minister David Cameron’s promise to investigate the culture of the British press has troubling implications for freedom of speech.
Of course freedom of the press does not include freedom from prohibitions on phone-hacking, among other generally applicable penal laws. Still, the spectacle of government officials investigating the press is disconcerting. The press is supposed to investigate the government. So while I share the widespread desire to see Rupert Murdoch and his minions held accountable for any crimes they have allegedly committed, I cringe when Cameron announces an official inquiry into ‘the culture, the practices, and the ethics of the press’.
Britain has a relatively weak commitment to free speech and a free press: an official, national speech code (the Racial and Religious Hatred Act) criminalises allegedly hateful speech. Privacy claims impose prior restraints on the press. In this context, it does not go without saying that the culture and ethics of the press are the business of the press. In this context, concerns about the chilling effect of the press inquiry Cameron proposes are more easily dismissed as mere caterwauling about censorship from civil libertarians who persist in regarding freedom of speech as the first freedom, not one of many competing rights to be parcelled out by legislatures and courts.
This perspective is not entirely unfamiliar or unwelcome in America; it reigns on many of our college and university campuses that severely restrict student speech. So while an American politician might hesitate to issue a forthright call for an inquiry into press ethics and culture, significant segments of the American public might favour one (for different segments of the press for different reasons). If the News of the World phone-hacking scandal is a morality play about renegade journalists, the official response to it is a cautionary tale about subtler forms of press censorship.
Cameron’s 8 July speech, addressing the scandal, included the obligatory concession to a free press, accompanied by the contrary assertion that the press should not be free to police itself. Acknowledging that it should not be policed by government, Cameron imagined some lofty, ‘truly independent’ oversight group comprising a ‘credible panel of figures… from different backgrounds’ that would hold the press to ‘proper standards of decency’. You may have to listen to his speech to appreciate its priggishness and the delusional elitism underlying the assumption that a small collection of professionally ‘credible’ overseers could identify objective, widely held standards of decency and impose them on the press without infringing on its essential freedoms.
In part, this assumption reflects the belief that the tabloid press – the primary object of outrage – can be distinguished from the respectable press. Indeed, you can find (shortsighted) support in the respectable press for Cameron’s vision of right-thinking regulators. ‘Standards of taste, decency and practice are not difficult to form. Calibrating them is often trickier, but far from impossible’, a column in the respectable Guardian declares, effectively endorsing the prime minister’s call for press regulation. ‘We need a free press that is also clean and trustworthy’, Cameron announced, like a latter-day Anthony Comstock; ‘that is what the people want, that is what I want and I will not rest until we get it’.
But if the people wanted a ‘clean’ press they probably wouldn’t consume one devoted to exposing and exaggerating dirt about major and minor celebrities. They wouldn’t be swayed by the tabloids’ schoolyard attacks on politicians (and politicians wouldn’t be cowed by the tabloids). I’m not questioning genuine public outrage over alleged phone-hacking that targeted families of murder or terror victims and soldiers; but if the public were generally outraged by the ‘culture’ of the tabloid press they would simply stop reading it. The attack on press culture is in part an attack on the preferences of its readers.
What ‘the people’ seem more likely to want, and what the government has legitimate power to provide, is not a presumptively ‘clean’ or ‘decent’ press but a non-criminal one (or, at least, one that only engages in criminal conduct when it targets celebrities and politicians). The press is not above the law, as Cameron declared; publishers and journalists engaged in criminal activity should be prosecuted, along with any police officers and politicians who abetted them. But press culture is outside the law, and inquiring into it distracts from investigations of alleged criminal activity, involving police as well as journalists.
Who poses a greater threat to public welfare: a journalist who offers a bribe or a police officer who accepts one? Cameron did promise an investigation of law enforcement’s role in the scandal, focusing on allegations of bribery and the failed 2006 investigation of tabloid practices. But he quickly pivoted to an impassioned discussion of press culture and the need to ‘learn wider lessons for the future of the press.’
He should be seeking wider lessons about the present state of law enforcement, inquiring into the ‘culture, practices, and ethics’ of the police. The tabloid press is essentially parasitic: like a confidence man it relies on the weaknesses of its victims and occasional accomplices – the prurience or gullibility of consumers, the cowardice and dishonesty of public officials. Consumers are entitled to these weaknesses; public officials are not. Yes, the alleged phone-hacking was, as Cameron declared, disgusting; but private corruption is not quite as disgusting or dangerous as the public corruption that enables it.
Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) This is an edited version of an article that originally appeared at theatlantic.com on 10 July 2011.
reprinted from: http://www.spiked-online.com/site/article/10749/