Thursday, 6 December 2012

After Leveson: Freedom of the press is not the same as freedom of speech

The Leveson Inquiry into the culture, practices and ethics of the British press has finally concluded. It recommends a 'voluntary' press association with statutory powers, and new liabilities to legal action for those who stay outside. Of course, some have called this a threat to the free press and free speech (e.g. Kenan Malik). First, freedom of the press should not be conflated with freedom of speech. Second, freedom of the press is merely a means to important ends: holding power accountable and informing people of matters of public interest. Proper regulation can make the press better at those while preventing significant harms.

Freedom of speech is something that pertains to individuals and is almost inseparable from respecting freedom of thought (see Mill, On Liberty). Freedom of speech is not respected in Britain. At least once a week someone is arrested and sentenced to some period of imprisonment for writing or saying (of wearing a T-Shirt saying) things that magistrates find offensive to the public. This is a disgrace, but it does not on the face of it have much to do with freedom of the press.

Freedom of the press is quite a different kind of thing, since it applies to a certain group of corporations (media companies), not individuals. These media corporations, unlike ordinary British citizens or even other corporations, have the special privilege of being allowed to say almost anything they like, however offensive or untrue. (Subject only to the constraints of market forces and the ability of very rich people to sue for libel.)

The justification for this freedom is not a straightforward moral argument. Corporations, unlike individuals, are not sophisticated enough agents to have thoughts of their own that they burn to express to others. Lacking moral agency they cannot claim the moral right to express themselves. (If they want to start claiming moral rights, then they should take on moral responsibilities, and, for example, be constituted in such a way that they can be held legally responsible for what they say and do as people are.)

Rather, the justification is mechanistic. It involves the idea that mass-media plays an important part in the functioning of a democratic society. It has the capacity to enhance public reasoning by informing the public about the important issues of the day, and to incentivise political office holders to serve the public interest by providing a means for the voting public to observe what they get up to. Those are the very reasons that autocracies censor the press veso severely.

Yet that justification only refers to the capacities of the mass media. For a mechanistic justification to be successful the machine must be shown to work. And it is not obvious that merely because media corporations have the power to serve the public interest they will actually do so. Mostly, they don't.

To repeat, corporations are not moral agents, but they can be understood as rational agents in the limited sense of maximising a production function. While a few media corporations are structured with complex production functions that include commitments to serving the public interest (e.g. The Guardian or the BBC), most media corps are the simplest kind of profit maximisers. Thus, the reason they mostly stick to infotainment and gossip rather than what might properly be called journalism is that their managers have a fiduciary duty to make a profit, not to serve the public interest. Real journalism is expensive and not necessarily popular; junkfood sells better.

The Leveson Inquiry though was initiated not because the media weren't performing their public functions particularly well, but because much of the UK print media has been abusing their power in incredible and very illegal ways. They were hacking the phones of abducted teenagers, impersonating people, bribing serving police officers and other public officials, extorting political favours, blackmailing celebrities, publishing that ruin people's lives (including many non-public figures), conducting witch hunts and hate campaigns (including against vulnerable minorities like Muslims, Eastern Europeans, and Roma), and so on. The press is out of control. Their 'freedom' has become a license to plunder and terrorise British society with impunity.

In the face of this, Leveson's proposals to institute a robust code of conduct with statutory support seems moderate and careful rather than the start of a slippery slope to draconian government censorship. Britain already has a much stronger statutory code for broadcast media, which all radio and TV channels must adhere to as a condition of their licence. With regard to journalism it requires such frightful things as fairness, accuracy, and respect for privacy. It is not obvious to me that these restrictions have undermined the journalistic integrity of the British broadcast media. The kind of pummeling British politicians daily receive on shows like the BBC's Today Programme is hardly to be found anywhere else in the world.

In fact, the British broadcast media is much much better than the free-for-all of British print journalism, and is trusted more by the public as a result. The reason for this success relates to the nature of competition. Free competition between economic actors (or any other kind of competition) will only produce good things rather than bad things if it is structured and policed correctly. First, there have to be clear and well enforced rules, to prevent actors choosing other rules that are easier for them. Second, those rules have to be such that they push the competitors to produce socially valuable outcomes (like informing the public and holding power accountable) as a biproduct of trying to win.

When competition is a genuine free-for-all, companies trying to maximise profits swiftly join a race to the bottom. That is not only bad for the public (as in the Chinese food companies that adulterated their milk with poisonous substances to sell more) but also for the industry as a whole (no one in China trusts the milk anymore). Thus, one of the primary benefits of well-designed press regulation is to put a floor on the kind of conduct that a free for all competition for readers/viewers otherwise naturally leads to. Among other things, it allows media companies the genuine freedom to pursue public interest journalism without fear of losing readers to less scrupulous competitors. 


  1. Interesting article. The Murdoch empire makes me sick, with its cheap (but effective) manipulations of its readership. In particular, recently they've been going hell for leather in The Sun painting the Leveson business as an attempt to stiffle the free press, and how evil that is.

    During this time, they've obviously backed off on their usual attacks on free speech (in the form of Twitter and other individuals expressing themselves on the internet outside any media company's control). They really want this area to be regulated, while they keep carte blanche to do as they please.

    1. Good point! Murdoch's papers always hated human rights. Private media company rights are another thing.

      Campaigning for freedom of the press in the name of 'free speech' is about converting human rights into corporate rights.