Offence Against Free Speech

No question: in the Western world, offence is gradually trumping free speech. Consider four separate incidents, all of which occurred in the last week.

Back in 2008, News Limited’s published a series of articles covering the deaths of four Aboriginal boys, who had stolen a car and died in an accident shortly after. The mother of three of the boys took legal action over comments published below the articles.

The Australian Federal Court found last Tuesday a number of those comments breached the Racial Discrimination Act.

Absolutely, the comments were cruel. They should not have been posted. One read “if you’re hopeless at mothering, recognise you are hopeless and don’t breed”. Another told law makers to “get out of thier [sic] ivory towers and start dealing out real punishment… instead of the 5 star treatment they get in prison”.

News Limited was ordered to pay $12,000 compensation for “offence, insult and humiliation”.

There has been one report (published in Fairfax papers) about this trial. Compare that to the outpouring of commentary about the Andrew Bolt case late last year: Factiva counts 333 separate pieces in newspapers alone.

Yet the Perthnow finding draws heavily on precedents set by the Bolt case. Sure, the Racial Discrimination Act found its current language back in 1995. But the act’s substance is only now being tested, and that substance suggests that the limitations on freedom of speech which it sets are very broad indeed. This is an evolving – and expanding – area of law.

For instance, notice that nothing in the comments quoted above makes reference to the fact that the boys were Aboriginal. The Federal Court decided, given the context of the news stories, the comments should be considered racial hatred nonetheless.

Much more attention has been given to the Kyle Sandilands episode – not least because of the extraordinary outcry when Sandilands originally aired his bizarre rant against a critic of his television show in November 2011.

Many people have suggested the Australian Communications and Media Authority’s response to Sandilands has demonstrated how weak the regulator is. But obviously a regulatory agency does not have the power to sack an employee of a private company.

And the new license condition which ACMA intends to impose on Sandiland’s station 2DayFM is actually quite significant. These new conditions provide a pretext under which ACMA could take away the station’s licence.

The conditions stipulate that 2DayFM cannot broadcast material which “demeans or is reasonably likely to demean women or girls generally and/or any woman or girl in particular”. Read that last clause carefully. For a speaker to “demean” any person who happens to be female is now forbidden – at least if they speak on 2DayFM. Sure, “Juliar” is in bad taste, but is it something that really needs to be regulated?

This is a dangerously illiberal path we are walking. And it’s a path other Western countries have travelled further along.

The conviction last Tuesday of a 21-year-old student in England for a stream of racist tweets provides no better illustration. Liam Stacey has been sentenced to 56 days jail for the sort of obscene trolling which is unhappily common on Twitter.

What Stacey wrote was foul, but his is an extraordinary punishment. Stacey was apparently drunk, and hastily deleted his tweets.

Of particular importance is the law he was prosecuted under. The UK Public Order Act 1986 prohibits “threatening, abusive or insulting words or behaviour”, which it places under the heading “fear or provocation of violence”. That this has evolved to become the criminalisation of idiocy shows how apparently modest laws can become tyrannical ones.

Even further along the path is France, where the perfumer Jean-Paul Guerlain was fined 6,000 euros for saying in a TV interview that he “set to work like a Negro”. Guerlain got off lightly. The French court could have imposed a six month prison term.

Obviously, Perthnow should not have published the seriously hurtful comments. Kyle Sandilands should not be such an oaf. One ought not get drunk on Twitter and hurl racist insults.

But if we are to remain free we must keep alive the philosophical distinction between things which are unlawful, and things which morally wrong but still lawful.

As governments expand their regulatory reach, they appear unable to conceive of the latter. Perhaps that’s no surprise. Legislators, lawyers and judges see all social issues through the prism of law.

But this legalism means we are losing confidence in society to police itself; to maintain its own standards. 2DayFM saw its sponsors drain away and its audience shrink. Liam Stacey was shouted down by others on Twitter and recanted his hateful words.

Indeed, the judge in the Stacey trial said something accidentally revealing while delivering his sentence: “I have no choice but to impose an immediate custodial sentence to reflect the public outrage at what you have done”. The power and effect of that public outrage goes unremarked here. Obviously, state regulation seems intent on supplanting society’s ability to ostracise and condemn.

And a society that drags people into the courts for nothing but offence is a deeply unhealthy society.

Free Press To Be Sacrificed For Political Retribution

Freedom of the media is too important to be controlled by government.

The Independent Media Inquiry has proposed just what was expected: an outrageous attack on freedom of speech and the press.

Its 470-page report, written by inquiry chairman Ray Finkelstein and released on Friday, concludes Australia needs a mandatory ”News Media Council” that would have coercive powers to regulate what it deems is ”fairness”, ”accuracy”, ”balance”, and ”quality” in the press.

This new independent regulator would have power to compel newspapers to publish responses from people who feel aggrieved. And it would have the power to censor: it could, for instance, force media organisations to delete stories from their websites that regulators feel aren’t up to standard.

But it wouldn’t just regulate newspapers. As if to emphasise just how radical his proposals are, Finkelstein says websites that get more than 15,000 hits a year should be brought under the council’s jurisdiction. That’s just 41 hits a day – in other words, pretty much every website publishing anything that could be described as ”news, information and opinion of current value”.

The new body would also regulate every magazine with a print-run above just 3000 copies. That would be the entire magazine industry, from the street press upwards. With such ambition, one might ask why Finkelstein excluded books, email newsletters, and Twitter from his regulatory web.

The specifics of Finkelstein’s proposals are bad enough. But they represent something more concerning: a reversal of the principle that it is not the role of governments to stand in judgment of public debate. The report may insist that this government-funded body will be independent, but in reality, it is a government body. And, when it comes to freedom of speech, the state should be subordinate to society – not the other way around.

This principle that has taken centuries to develop should not be abandoned just because some politicians don’t think they get a fair shake from newspapers. The media inquiry was obviously political retribution against critical journalism.

The Greens and the government have long believed newspapers report the carbon tax and the national broadband network unfairly (these issues are specifically raised in Finkelstein’s report). More broadly, they claim the press has an anti-government bias. Labor senator Doug Cameron said in November: ”The Murdoch press are an absolute disgrace, they are a threat to democracy in this country and we should absolutely be having a look at them.” Cameron was angry about leadership speculation printed in The Daily Telegraph. Of course the speculation turned out to be entirely true.

Recall that Bob Brown opportunistically used the News of the World phone hacking scandal in Britain to suggest that the Australian government should license journalists and newspapers. But to be fair to Brown, perhaps licensing was not as far-out an idea as it seemed at the time, given Finkelstein’s conclusions.

If Finkelstein’s proposals are adopted, all news websites, newspapers and magazines would have to sign up to and comply with the News Media Council’s standards of conduct. If they refuse, they would be taken to court and punished ”in the usual way”. This might not be called ”licensing” but it is virtually the same thing.

What happens if a blogger rejects the standards or refuses to delete something? Eventually, after contempt of court proceedings, they could be jailed. Nor are Finkelstein’s proposals unprecedented. The News Media Council would apply to newspapers, websites and magazines the same sort of regulations that at present oversee radio and television broadcasters. Problem is, those regulations are frequently used by political partisans as a weapon to attack controversial broadcasters.

Late last year Alan Jones was taken to the Australian Communications and Media Authority because he had described New South Wales bureaucrats as ”scumbags that run around preying on productive people”.

The authority, in its wisdom, decided Jones had not made ”reasonable efforts” to air other ”significant viewpoints”. And in response to a complaint by GetUp!, it is holding a formal investigation into whether Jones interviews too many climate sceptics. If we value free expression, these are not judgments any government body should be making for us.

Yes, there is good journalism and bad journalism. Newspapers should offer rights of reply and letters pages.

We should reject Finkelstein’s proposals, not to defend the media but to defend a fundamental liberal principle: no government should have power to decide what constitutes ”fair” or ”balanced” speech. Freedom of the press is just too important.

In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt

Institute of Public Affairs and Mannkal Economic Education Foundation 2012

Freedom of speech is at the heart of individual liberty and democracy. Yet, in Australia and around the Western world, it is under attack on all sides: from regulations to force ‘balance’ on the press, to new human rights like the right not to be offended.

In this important new book, Chris Berg offers a bold reinterpretation of why freedom of speech matters. Only by understanding how the right to free expression and freedom of conscience arose can we understand the magnitude of the threats we now face.

The liberty to express our thoughts and opinions is one of the central foundations of Western Civilisation. When governments threaten that freedom of speech, they threaten the foundations of liberty and the democratic system.

Available at the Institute of Public Affairs and

The Finkelstein Report into Media and Media Regulation: Licensing, censorship and accountability

Introduction: The proposed News Media Council recommended by the Finkelstein Report into the Media and Media Regulation represents a significant threat to freedom of speech.

  • The Council would be a de facto licensing scheme for printed and online media. Licensing over the printed press ended in the English-speaking world in 1695.
  • The Council would enable state censorship of controversial content.
  • The Council represents a reversal of democratic accountability: rather than state being accountable to the opinions of citizens, it would make citizens’ opinions accountable to the state.
  • The Council would not only regulate the speech of newspapers and television broadcasters, but it would regulate the activities of virtually every citizen who expresses opinions online or in print. Nearly every website, magazine, journal, and newsletter published in Australia would come under the News Media Council’s jurisdiction.

The extraordinary breadth of the proposed News Media Council’s jurisdiction suggests that, despite the Finkelstein report’s 400 pages of philosophy, history, economics, and public opinion research, it has not been properly thought through.

Available in PDF here.

New Technology And The Call For Censorship

The first recorded call for press censorship wasn’t for reasons of politics, or heresy, or public morality. It was to police “quality”. The gatekeeper mentality is a very old one indeed.

Printing spread rapidly after Gutenberg’s first Bible went on sale in 1454. Following the Bible and legal documents, one market priority for early printers was ancient texts. The first edition of Pliny the Elder’s Natural History produced in Italy was printed in 1469. It was riddled with errors and was in some parts incomprehensible. A second edition was printed the next year, by a printer in Rome, whose editor was a Bishop by the name of Giovanni Andrea Bussi.

Bussi’s edition also had problems. Lots of them. Demand for books at their now much lower prices was enormous, and Pliny was not the only book the editor was working on at the time. (Bussi blamed “technical reasons” for errors in his work – an excuse no more convincing then than it is today.)

The print industry was already highly competitive, and Bussi’s rivals played dirty. One of those rivals was Niccolò Perotti, an archbishop and author of one of the earliest guides to Latin grammar.

Perotti wrote a letter to Pope Paul II. Bussi’s corrupt version of Pliny, Perotti complained, was one of many corrupt versions of Roman and Greek books being pushed around Italy. Editors who “set themselves up as correctors and masters of antique books… pervert what is correctly written”. They do not understand what they are editing. They interfere and impose their own views on the classical masters.

Perotti’s solution was two-fold. First, there should be a common standard for editors – a code of practice, we would say. But no doubt some editors would violate the standard. So Perotti asked the Pope to set up a bureau to regulate the quality of books. This bureau would “prescribe to the printers regulations governing the printing of books” and “examine and emend” each book. “Reckless advertisement” of the editor’s views would be limited. The performance of this task “calls for intelligence, singular erudition, incredible zeal, and the highest vigilance”.

The Pope did not take up Perotti’s proposal. Censorship in the decades to come focused on banning heretical and Protestant books, and regulating obscenity.

But this early peculiarity in the history of censorship looks conspicuously like a debate we are having five and a half centuries later.

It took a few decades for Church and secular authorities to understand the revolutionary potential of mass printing. But they got there. The institutions to censor and restrict bad books were being developed half a century before Martin Luther posted his 95 Theses against Rome. The medium necessitated censorship more than the message.

Perotti’s argument is almost an exact parallel of one made today. Online media is out of control. In the print media, editorialising is crowding out description. The pressure of competition is undermining quality everywhere. New technology is bringing out the worst in the journalist and reader alike.

Niccolò Perotti welcomed the printing press yet said it was being abused and needed to be regulated. The head of the Press Council Julian Disney told the Independent Media Inquiry last month that the internet is “a cacophony” and that “serious bloggers and serious websites” should submit to Press Council regulations. The council has written that bloggers exist in a “regulatory void” and “print or post material before facts have been adequately checked”.

One academic submission to the Media Inquiry decried “blog troll chatter”. Another group of academics suggested that the Media Entertainment and Arts Alliance’s union code of ethics was vital for blogs (even though they are not bound by it) because the codes’ “standard is one against which their actions can be judged”. Ken McKinnon, a former Press Council chair, argued “news-type” blogs should be dragged into the council’s jurisdiction.

The internet is to these advocates what the printing press was to Perotti – something that, unless judiciously tamed, will lead to the coarsening of public debate. According to this mindset, new technology has to be bought under old frameworks. It is too anarchic to be left by itself. Online debate is wild and uncontrolled.

“Cacophony” is an evocative word. It doesn’t mean simply too many loud voices. It means too many loud, discordant, clashing, harsh voices. Online debate is not being coordinated by a body like the Press Council. It is meaningless until it is tamed by regulators. Julian Disney’s complaint seems like an aesthetic one on the surface, but it masks a deeper objection to the nature of democracy. When everybody can have a say, everybody will have a say.

You would think this is a good thing.

But just as Perotti’s vehement attack on Bussi was driven by rivalry, so too is the backlash against online media being driven by those who see it as a threat to the established order.

Perotti eventually took Bussi’s job. He produced his own version of Pliny’s Natural History in 1473 – which was promptly denounced by another scholar for being even more error ridden.

And his proposal was ridiculous – Perotti obviously did not foresee the explosion of book production in the subsequent decades, let alone centuries. Obviously the Church had no moral issue with censorship. But even if the papacy had wanted to enforce quality in the press, how could it do so?

We will remember complaints about the “cacophony” of the internet as just as foolish.

Every new media technology is met with earnest concern that it undermines standards or is out of control.

The assault on freedom of speech

In the first editorial of the earliest independent newspaper The Australian (no relation to the current iteration), barrister turned media proprietor Robert Wardell wrote that:

A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate such [individual] influence, frustrate the designs of tyranny, and restrain the arm of oppression.

Contrast this with what Justice Mordecai Bromberg wrote in his September decision in the case of Pat Eatock v Andrew Bolt and the Herald and Weekly Times: ‘the public deserve to be protected against irresponsible journalism’.

Protected by whom? And who decides what constitutes ‘irresponsible’? The decision in the Bolt case, both the way it was made and the way it was received by those hostile to freedom of expression, is deeply concerning.

The case is doubly concerning because it is just one of many new challenges to freedom of speech. The last six months of Australian politics have underlined that freedom of speech is under threat. Greens Leader Bob Brown has called for licensing of newspapers, or, failing that, for journalists to be licensed individually. Following the Greens’ lead, the Gillard government has initiated a media inquiry with specific remit to increase regulatory oversight over newspaper ‘ethics’ – and largely because it is annoyed by the coverage it receives in News Limited papers. Various commentators now openly talk about the government forcing ‘balance’ on controversial political views like climate change.

For many on the left, it seems finding exceptions to freedom of speech is more important than defending the principle.

Freedom of speech is one of our great bulwarks against excessive state power. It is one of the basic individual liberties. Free expression is an essential human right. Considering how close to the heart freedom of speech is to liberty and liberalism, it is absolutely vital that threats against it are countered.

In September, Justice Mordecai Bromberg found that the columnist Andrew Bolt (who was profiled in the January edition of the IPA Review) had violated Section 18C of the Federal Racial Discrimination Act, which makes it unlawful to, ‘offend, insult, humiliate or intimidate’ on the basis of race, skin colour, or national or ethnic origin. The offending columns in question were published in 2009, and discussed the light-skinned individuals with part Aboriginal backgrounds who, Bolt claimed, had chosen to identify as indigenous out of a range of possible racial identities.

Justice Bromberg recognized that Aboriginality, and race more generally, is a social construct. Australian universities offer entire subjects in Aboriginal identity. Nevertheless, Bromberg found that it was, ‘reasonably likely that the ordinary person within this group would have been offended and insulted by her perception that [Bolt’s columns] were challenging the legitimacy of her identity and that of others like her.’

Certainly, Bolt made some errors, inaccurately tracing the lineage of some of the individuals in question. But they did not sue Bolt for defamation – an ancient common law right and limit to freedom of speech intended to redress reputation damage. They sued under an Act that both had different standards by which to judge the harm and, which uniquely related to offences held by a group.

Justice Bromberg used the existence of Bolt’s errors and a (necessarily subjective) assessment of the ‘inflammatory language’ in some of those columns to bypass Section 18D of the Act – which offers some limited exceptions to 18C, including whether the comment is made in the public interest and in good faith. That legal judgment was his to make. But the Bromberg decision goes much further, explicitly endorsing not only the language and shape of the Act, but its intent:

In seeking to promote tolerance and protect against intolerance in a multicultural society, the [Racial Discrimination Act] must be taken to include in its objective tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free of pressure not to do so.

And a few dozen paragraphs later, he argued that, ‘In my view, even outside of political discourse, freedom of expression is not merely a freedom to speak inoffensively … But there are areas of discourse where incivility is less acceptable, including because it is more damaging to social harmony.’

The problems with the Racial Discrimination Act have been known for a long time. As far back as 1992, the IPA Review published Terry Lane’s critique of the racial discrimination restraints on speech, arguing that ‘It is impossible to see how racial harmony would be encouraged, improved or guaranteed by the imposition of penalties on those who express outrageous views.’ But Justice Bromberg’s decision makes it clear that the Act is explicitly designed to restrain specific viewpoints from being expressed, in pursuit of a specific – and, it might as well be said, controversial – goal. There is nothing legally new in the Bolt case. While Justice Bromberg was happy to endorse the social purposes of the Act, he seems to have kept within it. But it is a stark illustration of the still yet unbounded scope of the Racial Discrimination Act.

The Bolt case would be less concerning for freedom of expression if it wasn’t concurrent with an escalating political battle against press freedom. The relationship between News Limited papers (in particular The Australian) and the federal government has been openly hostile since the global financial crisis broke in 2009. The government’s Keynesian stimulus package has been dogged by waste and policy failure – facts which the press has been more than willing to focus on.

In response, the government and its supporters have, over the last two years, spent an increasing amount of time complaining about an overly-critical media and perceived flaws in political and policy coverage.

Politicians complaining about press coverage is one thing. Quite another if they do something about it. The British News of the World phone hacking scandal provided a pretext. When the scandal was reignited in July this year after it emerged that News of the World – owned by Rupert Murdoch – had hacked the phone of a murdered schoolgirl, the resulting media and political frenzy was global.

Despite no suggestion and no evidence to support the claim that such phone hacking had gone on in Australia, Julia Gillard nonetheless claimed that News Limited, the Australian arm, had ‘hard questions to answer’. Exactly what those hard questions were is not clear. The most obvious explanation is likely the real one: there were no hard questions. Instead, the Prime Minister saw the British hacking scandal as an opportunity to sully her critics in the media.

Gillard was, at least initially, circumspect about the policy consequences of her hostility to the press.

But if the relationship between News Limited and the government is fraught, it is nothing compared to the relationship between News Limited and the Greens. Bob Brown has described his press opposition as the ‘hate media’ because he believes they are unfair to his party. Since the News of the World scandal he has first hypothesized about imposing a government license for newspapers – a policy which has been absent in the Anglosphere since it was found to be tyrannical four centuries ago – and then having the government license individual journalists – presumably to weed out ‘irresponsible’ ones.

Wielding their power over Julia Gillard’s office, the Greens pressured the government to instigate a media inquiry. The purpose of the independent media inquiry, which was announced in September, is clear: to impose more government oversight of the press. Lobbying for the inquiry on the ABC’s Q&A, Greens Senator Christine Milne said that, ‘it’s time we had a good inquiry and certainly bias is going to be one of the things that certainly will be looked at.’ The independent Rob Oakeshott supported the push for the inquiry because of the ‘absolute rubbish’ that was being written about him.

There is already a series of serious policy reviews being conducted about media reform. No one denies that the challenge of the internet necessitates a rethink of the regulatory settings governing media and telecommunications. The Institute of Public Affairs has long argued that regulations like sport anti-siphoning (which give free to air television first broadcast rights to ‘premium’ sporting events), local content requirements (which impose mandatory minimums on Australian television and broadcast content), ownership restrictions, and much telecommunication regulation make little sense in a digital age where the boundaries between broadcast and media services are being blurred. Nevertheless, the government is already looking into that with a largely unheralded but hugely important Convergence Review, conducted by the Commonwealth Department of Broadband, Communications and the Digital Economy.

But it is clear that the purpose of the independent media inquiry is to regulate the content of newspapers, not conduct a needed policy reform inquiry. The terms of reference for the inquiry appear benign, but they are not. The inquiry was instructed to facilitate two distinct investigations. First, it was to look at the sustainability of media business models in the digital age. Considering the growing calls from many on the left for direct subsidies of ‘serious’ journalism, this is worrying in and of itself. But the second investigation was much more disturbing. The inquiry was tasked to study the ‘effectiveness of the current media codes of practice in Australia’ and ‘ways of substantially strengthening the independence and effectiveness of the Australian Press Council’.

The implication is obvious – the inquiry will look at ways to make the voluntary codes which govern media ethics into mandatory regulations.

It is good that media organisations develop their own ethical codes of practice. But it is very bad that the government believes it should do that for them. Governments are necessarily antagonistic to the press; our current federal government, perhaps more so than usual, but not more than, say, the Whitlam government. We should be very uncomfortable with the prospect of government regulators – perhaps a newly enlarged and empowered Press Council-monitoring, scrutinising, and legally punishing journalists and newspapers for perceived ethical breaches.

In a functioning democracy, the media is one of the primary ways by which governments are scrutinised. So governments should not be putting themselves in the position of defining what constitutes approved and disapproved commentary or journalism. This is a breach of freedom of the press. And it is fundamentally hostile to liberal democracy.

We can see how serious these proposals are by the way interest groups have reacted to the news of the independent inquiry. The chair of the Australian Press Council, Professor Julian Disney – which is, currently, paid for by voluntary contributions from the newspapers, and has no coercive power-welcomed both government financial support and the prospect of regulatory ‘teeth’. He told the marketing website Mumbrella that he wanted the Council to regulate website comments and ‘serious’ bloggers.

Disney told the inquiry itself he was concerned about the ‘cacophony’ of voices on internet comment threads: ‘You can’t have free speech if you can’t hear what’s being said.’ This appears to be more a complaint about vibrant democracy than unethical journalism. Groping around for a purpose that wasn’t simply an attack on the government’s critics, it heard some extraordinarily illiberal and anti-democratic views, by apparently mainstream people.

These are not the only threats to freedom of speech in Australia today. In the June edition of the IPA Review, I outlined the extraordinary call by the host of the ABC’s Media Watch, Jonathan Holmes, to have the government’s regulator enforce ‘balance’ on a number of climate sceptic radio hosts. In a Media Watch segment in March titled ‘Balancing a hot debate’, Holmes pointed out that hosts like 2GB’s Alan Jones, 4BC’s Gary Hardgrave and MTR’s Chris Smith tended to interview climate scientists they agreed with.

Fair enough – but you’d think, in a society which values freedom of expression, that was their prerogative. Nevertheless, Holmes suggested that this contravened the Commercial Radio Australia Code of Practice which insists that broadcasters must ‘present significant viewpoints when dealing with controversial issues of public importance.’ This regulation may be on the books, yet it is practically defunct. The left-wing activists GetUp filed a complaint-necessary for the Australian Communications and Media Authority to act-the next day.

It seems amazing to have to do so, but in 2011 we need to remind ourselves why freedom of speech matters.

The first issues paper of the media inquiry even asks what the purpose of a free press actually is – as if its existence is up for debate. The paper first asked whether the ‘marketplace of ideas’ theory assumes that the market is open and readily accessible?

The marketplace of ideas theory suggests that freedom of speech is desirable because the only way to come to the truth about a topic is to freely debate it – the ‘market’ for speech will ensure that the best and most true ideas float to the top, and wrong ideas fade and die. Then: ‘Are there alternative or preferable justifications for freedom of the media?’ There certainly are. Freedom of speech is a subset of a larger right – that of liberty of conscience. People should be at liberty to express what they privately believe (subject to small limits on defamatory speech and overt threats).

The ‘marketplace of ideas’ theory is high-minded and idealistic – imagining a world where the only public debate is academic, rational, and focused on coming to the ‘truth’ of any given proposition. And it implicitly limits freedom of speech. If speech is necessary to the functioning of a democracy or to truth-seeking, the marketplace of ideas theory provides a defence. If the speech is not necessary, then the theory offers no support. It provides absolutely no guidance about what to do with, for example, the anonymous blog comments which the Press Council and government would like to regulate.

It provides no guide to how policy makers should treat wrong ideas, orideas on which a consensus (dubious or otherwise) has formed. It gives an opening – which Media Watch and GetUp have taken advantage of – to restrain public debate by insisting on ‘balanced’ presentation of political issues. And it provides an opportunity for governments to restrain debate on issues when they feel they have more pressing social goals – as Justice Bromberg suggested in the Bolt decision.

The marketplace of ideas justification for freedom of speech is woefully inadequate. That the media inquiry can think of this as its only justification is deeply concerning. And it emphasises the challenge – not merely to resist illiberal violations of freedom of speech, but to demonstrate that freedom of speech is a value worth defending at all. While the threats may seem disparate – the media inquiry and the Racial Discrimination Act have their own origins and their own political supporters – the reaction to the threats in the last few months has revealed that freedom of speech is not at all safe in Australia in 2011.

Why Care About Freedom Of Speech?

The terms of reference for the Government’s independent media inquiry are limited but its ambitions apparently are not.

The inquiry released an issues paper last Wednesday which raised a big philosophical question: why should we care about press and speech freedoms?

Citing Oliver Wendell Holmes’s famous justification for freedom of the press, the paper asked, “Does this ‘marketplace of ideas’ theory assume that the market is open and readily accessible?”

The ‘marketplace’ theory holds remarkable currency. Justice Holmes provided the world with the metaphor (“free trade in ideas”) but the concept is older, variously attributed to John Milton in the 17th century and John Stuart Mill in the 19th. The argument is simple and appealing: we need to allow controversial statements because only through open discussion can issues be resolved. Democracy requires debate, so speech liberties help us maintain our democracy.

But the ‘marketplace of ideas’ theory is actually pretty flimsy support for freedom of speech.

After all, actually-existing non-metaphorical markets are anything but free. Many goods are illegal to trade or own – drugs, guns, hand grenades. Products and services are highly regulated. The circumstances which they are sold is carefully proscribed – most obviously alcohol or cigarettes. Even in an ideal ‘free market’ there would be much state involvement. Property rights have to be protected and contracts enforced.

So, as the economist Ronald Coase once sharply pointed out, if we treated ideas and speech as we treat the real marketplace, we’d be blessing all sorts of objectionable government interventions. (Coase went on to wonder why intellectuals were so accepting of regulation in real markets but not in metaphorical ones; he was writing in the early 1970s, before intellectual fashion had completely turned against free speech.)

This is not just being tediously literal. The ‘marketplace of ideas’ metaphor is the only justification for press freedom the issues paper mentions, and it frames the paper’s questions about ‘access’ to the press. The inquiry asks whether individuals (or groups) should be granted a right of reply if they have opposing views, or if their “honesty, character, integrity or personal qualities” have been questioned.

Implicit in the marketplace of ideas theory is that freedom of speech has a purpose. It is utilitarian. The only way to come to the truth about an idea is to freely debate it. The best ideas – that is, those which are most true – will out-compete the rest.

Yet it’s trivially easy to demonstrate this ‘marketplace’ is distorted. Some have access to louder megaphones than others, as everybody keeps pointing out.

And if speech has a utilitarian purpose, it never quite achieves its ends – even once ‘truth’ has been obtained through free discussion, speech freedoms continue to allow wrong ideas to be broadcast.

The utilitarian approach sows the seeds of its own failure. Twentieth-century commentators were more honest about that. One commentator in Forum in 1949 argued free expression “is a right because such expression is of benefit to the community. Obviously, then, the community through the government may at any time limit this right for its own protection.”

The marketplace of ideas theory doesn’t capture the true value we place on free speech. No-one believes that, for instance, 9/11 Truthers no longer have a right to share their opinions, no matter how discredited and ludicrous those may be.

Instead, we need to think of freedom of speech as a right, not a tool to achieve an end.

Freedom of speech is a subset of freedom of conscience. Not for nothing does the first amendment of the United States constitution bundle the right to exercise religion with the freedoms of speech and press. Liberty of thought is meaningless without a corresponding liberty of expression. What we believe, we should be able to say.

The American revolutionaries argued a people were only as free as their press. Echoing those sentiments, the legal academic Lee C Bollinger wrote in 1983: “Free speech is not just a practical tool for making systemic repairs, but an affirmation or statement of what we value as a people.”

(Just because the right to free speech cannot be absolute does not make it less of a right – the common law has for centuries recognised speech is limited insofar as it is threatening or defamatory. Expression is not unlimited either. Punching someone in the face may be “expressive” but does not deserve free speech protection.)

Characterising freedom of speech as a right rather than an instrument has policy consequences.

For instance, the right to speak must be also the right not to speak; to determine the content of your speech. This principle is breached clearly by one of the major proposals of the media inquiry issues paper – a legally guaranteed right of reply which would treat newspapers as regulated common carriers.

Those who hold a ‘marketplace of ideas’ view of free speech may find this proposal unobjectionable. But those who believe free speech is a human right should be repulsed. Perhaps newspapers should open their pages for wide-ranging debate. But that’s ultimately between them and their readers – a free speech choice, not a free speech requirement.

As Bollinger argued, “The reason we shelter speech is as important as the speech we shelter.” The frame in which we understand free speech shapes our attitude towards it. The dominant policy view – seemingly held by those who drafted the terms of reference to the media inquiry and those who drafted its issues paper – is that freedom of speech is only of utilitarian importance. But that view has too many limitations and inconsistencies to be useful.

We do not want the Government managing public debate for all sorts of reasons. First among them is that any attempt to do so will necessarily abridge our basic right to freedom of speech.

Submission to the Independent Media Inquiry

Introduction: The Independent Inquiry into Media and Media Regulation raises troubling freedom of speech and freedom of the press issues. A free and independent press is an absolute necessity for a functioning democracy, and freedom of speech is one of the basic foundations of individual liberty.

Available in PDF here.

Have The Media Watchers Undermined Press Freedom?

It’s not hard to see where the media inquiry is headed.

The terms of reference were released last week. The inquiry will look at “the effectiveness of current media codes of practice”, “ways of substantially strengthening the independence of the Australian Press Council”, and “any related issues pertaining to the ability of the media to operate according to regulations and codes of practice”.

Private entities are welcome to develop ethical and professional codes. Indeed, they probably should. But it doesn’t follow that government should muscle in to enforce those codes – particularly if the entities in question are newspapers critical of the government. The risks to press and speech freedom are obvious.

But the path from self-regulation, to quasi-regulation, and then to black letter law is well-trodden.

Many industries have introduced self-regulation to stave off government interference. Many also discover years later that governments turn those voluntary measures into heavy-handed regulation.

In the case of the press, the story dates back nearly 40 years.

The relationship between the press and the Whitlam government was deteriorating rapidly during 1975. So much so that by August Whitlam’s minister for the media, Dr Moss Cass, was openly canvassing ways to increase political control of the print media.

Cass offered choices. He suggested licensing of newspapers. He suggested government subsidise print journalism. He suggested a Royal Commission into the Media. And he suggested a Press Council run by the newspapers.

Obviously, from perspective of the media and press freedom, a council was the lesser of many evils. The Australian Press Council was established in 1976.

As the Age editor Graham Perkin had said a few years earlier, “I have no doubt that we will have a Press Council forced on us one day by this government or the next. It would be best if we initiated this move ourselves so that the Press Council we get reflects the best ambitions and motives of the press rather than the ignorance and misunderstanding of public servants and some academics.”

But self-regulation is only ever a delaying tactic. The terms of reference to the Gillard Government’s media inquiry clearly suggest government involvement over developing and enforcing professional standards. The current chairman of the Press Council, Professor Julian Disney, is asking for government funding and statutory powers.

Last week Media Watch’s Jonathan Holmes mounted a stirring, but limited, defence of freedom of the press, writing in The Drum that “Three hundred years of history would be turned on its head” if Disney got his way.

It’s an important article, and a revealing one. Holmes’s arguments are worth dwelling upon. They’re held by many other apparent supporters of free speech. And they illustrate how heartfelt pleas for self-regulation are used to push for government interference.

Holmes argues regulation of the content of the print media is objectionable on freedom of the press grounds. Excellent.

But he undercuts that by arguing regulation of broadcast media content is justified.

A lot rides on how the distinction is drawn. Holmes describes broadcasters as “licensed semi-monopolists”. True, but only because government artificially restricts broadcast competition with radio spectrum licenses.

Rather than challenging this basic policy problem, Holmes would have bureaucrats regulate broadcast content to compensate – chasing one regulatory error with another.

(An alternative is to grant property rights in radio spectrum and get the Government out, as the Nobel-winning economist Ronald Coase suggested half a century ago.)

And on closer inspection such an argument doesn’t quite demonstrate why, say, the Herald Sun shouldn’t be made as “accountable” to government regulators as 2GB.

Yes, broadcasters are unconscionably protected from competition. But there are still many more metropolitan radio stations than newspapers. Towns that now have only one paper still have five TV channels. So if an exception to freedom of the press must be made, surely it must be made for our limited print media, not our relatively vibrant broadcasters?

Rather than defending freedom of the press, Holmes’s rickety distinction between print and broadcast undermines it – opening a huge gap that opponents of free speech can drive their regulatory desires through.

Yet there’s a more critical way in which Media Watch has been complicit in self-regulation becoming government regulation.

Media Watch takes a very legalistic approach to media criticism. Rather than simply pointing out lapses in ethics or inaccurate reporting, the program goes to lengths identifying codes of conduct or professional standards guidelines which have been breached. And, as I argued in The Drum in March, where regulators do have power, Holmes has been quick to call for legal action.

Citing the codes of conduct is a rhetorical ploy that Media Watch has used to emphasise the naughtiness of editors and journalists.

But it is a very influential program with a very powerful audience.

It should be no surprise then that, as a result, the Government has latched onto the apparent inadequacy of those codes, and want to make them legally enforceable.

Media Watch’s carefully documented collection of self-regulation botches have handed the political class an opportunity to restrain the press freedom Holmes so passionately defended in his column.

This is a dynamic we’ve seen in many other industries. Activists pressure private industries to follow voluntary standards. Lobbyists then convince governments to turn those standards into mandatory regulation. Rinse, repeat.

Which is, it seems, exactly what’s happening with the media inquiry.

Liberty Gets The Chop

Where are our great public intellectuals on new threats to freedom of the press? Under the Howard government, there was a minor genre of books and essays condemning the prime minister’s apparent antipathy to public debate. With titles like Silencing Dissent, academics and activists lined up to say John Howard was cracking down on his opponents. David Marr argued in a 2007 essay that Howard was ”corrupting public debate”. Howard had ”cowed his critics” and ”muffled the press”.

So the silence on the inquiry into media bias is jarring. Yesterday the Greens proposed an inquiry to look at ”whether the current media ownership landscape in Australia is serving the public interest”. Those are weasel words. The inquiry – also supported by some independents and many within the government – is obviously intended to influence what the media publishes.

After all, Rob Oakeshott supports an inquiry because he thinks ”complete rubbish” is being written about him. Labor MP Steve Gibbons spoke of the need for an inquiry because of ”vendettas of hate” being waged against the government. Greens senator Christine Milne has said ”bias is certainly one of the things which is going to be looked at”. Bob Brown talks of the anti-Green ”hate media”.

The federal cabinet reportedly held lengthy discussions several weeks ago about ”going to war” with News Ltd and The Australian newspaper. Along with an inquiry, the cabinet also canvassed a government advertising boycott, because it wasn’t happy with coverage of the Craig Thomson affair and journalist Glenn Milne’s airing of old allegations that Julia Gillard had been tangentially associated with similar things.

But recall: in his Howard-era essay, David Marr described the government’s reluctance to use taxpayer money on objectionable artistic grants as ”censorship by poverty”.

Many agreed. Surely by this loose standard, the Gillard government’s threat of withdrawing advertising from a media company it objects to is ”censorship” as well? Where’s the outcry?

In 2007, Robert Manne wrote the foreword of Silencing Dissent. But in a Quarterly Essayreleased last week, Manne complains the ”real and present danger to the health of Australian democracy” is actually Rupert Murdoch and The Australian.

It couldn’t be that the ”health of our democracy” has been hurt by this government’s unfathomably low popularity. Or how it dumped a prime minister, reversed a core election promise and fouled up its refugee policy beyond belief.

No, more concerning is the The Australian‘s ”jihad” against the Greens. In his essay, Manne praises the Greens as ”the most important left-wing party in Australian history”. The Labor Party – Australia’s oldest political party and the first labour party to hold government on the planet – might disagree.

Well, perhaps Manne is using ”left wing” as a synonym for ”authoritarian”. Surely there’s no other word to describe Bob Brown’s recent suggestion the government should impose newspaper licences.

The only reason you’d impose a licence is so you have the power to take the licence away. That’s why in the English-speaking world, newspaper licensing was abandoned nearly four centuries ago. It was tyrannical.

Certainly, the proposed media inquiry may be limited to studying things like privacy or media ownership. Or it may not go ahead at all. The government has enough on its plate. And it is a legitimate question whether the law has set correct limits on media ownership concentration. (Or whether any limits should exist. The press is under extreme commercial pressure from the internet. At no time in history have media moguls been less powerful.)

Still, there’s a comprehensive review going on right now into every facet of media regulation – the convergence review. Few seem to care about that.

The idea that a government might regulate a media organisation specifically because it didn’t like an editorial line is an obvious attack on free speech. Should companies be broken up, their ownership divested, as punishment for being critical, fairly or unfairly, of a government?

Indeed, the fact the government is talking about an inquiry gives it leverage over critics. Surely few genuine supporters of free expression are comfortable with that. Imagine the furore if John Howard had done – or suggested – anything similar.

The Gillard government is one of the most shambolic in history. No surprise then that some people want to talk about failings of the press. Fixating on unfair media coverage must be comforting for those let down by Labor’s performance in government.

In his recent book, Sideshow, former finance minister Lindsay Tanner argued the media was too easily distracted by the frills of public life, to the detriment of policy analysis.

This might be a fair point. But his publicity tour was revealing. Tanner was the fourth most powerful person in the Rudd government. He retired just as it imploded. He’d know some things of public interest. Yet in interviews, Tanner refused to be drawn on the inside workings of that government. He just wanted to speak about media perfidy. Complaining about the media sideshow is just another sideshow.

Predictably, the News of the World scandal in Britain was used by Australian politicians to embarrass their press critics. Months later there’s still no evidence to suggest phone hacking of any kind has occurred Australia. Yet cries for a media inquiry have only gotten louder.

Silencing Dissent asked readers to ”judge for themselves whether the erosion of democratic institutions described in this book is the accidental result of a particular leadership style or part of a more insidious attempt to reshape democracy”.

The question was shrill then. But many nodded along at the time. And for those who did, that same question should now be asked of the politicians clamouring for legislative solutions to negative media coverage.