The Leveson Inquiry, as readers of this blog well know, has exposed Britain’s tabloid media in ways that shouldn’t just make journalists or newspaper proprietors ashamed. The exposure has also shamed, by extension, the British public, as well as emphasizing the gulf between those who don’t read tabloid newspapers and those who do. Just as the tabloid press is vile and disgusting, the spectacle of Britain’s social betters looking down their (our?) long snouts at the tastes of some among their (our?) fellow citizens is vile and disgusting…
Or is it? Are some tastes so debased they ought to be regulated, and if so, by whom?
I was put in mind of this most awful of conundrums when reading two pieces of writing, one good, one bad. The first is by philosopher Onora O’Neil, a prominent Rawlsian-cum-Stoic. Her piece is so good that no summary of mine can do it justice, and (just for once), although in the Financial Times, it hasn’t been locked behind a paywall. Read and enjoy, agree or disagree (I haven’t made up my mind yet); it repays careful attention. I will quote some of her piece to give you a flavour:
[Mill] then points out that much individual speech is merely self-regarding (today we would say self-affecting). Since it does not affect others, it does not harm them, so issues of self-protection will not arise. Given the harm principle, such speech should neither be prevented nor constrained. Mill concluded that individuals should enjoy extensive rights to self-expression, which he saw as including “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological”. He claimed that this extensive freedom was “practically inseparable” from “liberty of expressing and publishing opinions”.
Mill’s defence of individuals’ rights to self-expression is, however, an awkward basis for an account of press freedom. If individuals have rights to publish opinions that will not harm others, they will need media that enable them to do so, but the last thing they will need is media with rights of self-expression that parallel those of individuals.
The phrase “freedom of expression” is central both to Mill’s account of individual rights to self-expression and to contemporary claims about press freedom. But this may be no more than an unfortunate convergence of terminology. Powerful institutions, including media organisations, are simply not in the business of self-expression, and should not go into that business. An argument that speech should be free because it generally does not affect, a fortiori cannot harm, others can’t be stretched to cover the speech of News International or of the BBC, any more than it can be stretched to cover the speech of governments or large corporations.
This argument should be familiar to any lawyer with a basic knowledge of English constitutional law. We learnt the hard way — through the various wire-tapping cases — that the government cannot have the same rights and powers as individuals (the old rule, since abrogated, was that the government, like the citizen, could do anything that wasn’t prohibited). Government has to be constrained. If it isn’t constrained, we really are dealing with Leviathan on steroids.
O’Neill’s article applies the same principle to media corporations, and various persons in both the Tea Party and the Occupy Movement have since applied it to non-media corporate bodies, as part of a general irritation with what is being called ‘corporatism’ on various sides of politics. In this piece, I am concerned only with media bodies, be they public or private. So far, so simple.
The second article was a not very good piece about sexism in the British tabloids — which I found via Ophelia Benson’s Butterflies & Wheels — by Laurie Penny in the Guardian. Why it is bad is illustrated admirably by this quotation:
Here’s what you learn, if you’re a woman and you grow up with British tabloid newspapers in the house: if you get raped or murdered, it’s your fault; if you are old, overweight or just having a bad hair day, you are disgusting. You must work to appear as sexually attractive and submissive as possible, at which point you will be called a slag, a disgrace and a “loose-knickered lady lout”, in the words of Quentin Letts. Women who have careers are miserable and pathetic. You were born to be a wife and mother, and succeeding at these things is the only thing that will fulfil you. Having a baby is the most valuable thing you can possibly do, unless you’re poor, or unmarried, in which case you’re society’s scum. If you complain about discrimination or sexual violence, you’re a shrill, jealous harpy.
It is vital that we understand that sexism is not just one more naughty thing that the tabloids do. Sexism is the dirty oil in the engine, the juice that makes the whole shuddering sleaze-machine run smoothly. The eyes that are drawn to the topless teenager on page three skim lightly over page two, where propagandists on the Murdoch dollar peddle torrid justifications for the waging of wars and the slashing of public sector jobs and call it news.
As a general rule, it is a good idea to attempt to prove one’s assertions, and not argue by anecdote. The last paragraph is also bunkum; tabloid sexism may indeed be nasty, but a page three girl is not quite the same as hacking a dead serviceman’s telephone, or attempting to run down an elderly pedestrian in pursuit of a story, or stalking schoolchildren. That said, as I commented on the B&W thread, we do have a serious problem, and it’s not just one of taste, although a large part of the problem is debased taste (of which sexism is part), because the debased taste feeds into criminality: one can’t spread much (popular, but salacious) gossip on everything from celebrities to murder trials unless one is willing, it would appear, to engage in significant criminality. My comment on the relevant thread was as follows:
The issue is this: Britain’s tabloids are awful along every dimension; sexism is but one. They are full of lies. They are full of errors. They have and do facilitate criminal behaviour on the part of their employees. They have been engaged in bribery of the police, the theft of private information, the blagging of medical records, perverting the course of justice, generating mistrials, promoting vigilantism, suborning Parliament, the stalking of persons from all walks of life (including, in a particularly egregious incident, J. K. Rowling’s children), the defamation of persons great and ordinary. They are shamelessly and disgustingly exploitative, of everyone and everything that comes within their grasp.
Even Nick Davies, the Guardian reporter who first broke the phone-hacking story acknowledged when he appeared before the Leveson Inquiry that the tabloid press in Britain cannot be trusted to regulate itself. Which means we will get Ofcom, but for newsprint. And the people who are expected to staff and monitor regulators of this type, in Britain, are lawyers. And I must admit (because of the area of law in which I specialise) I am just the sort of person likely to be asked to do a stint on a media tribunal. Perhaps I should start printing business cards with ‘Platonic Guardian’ on them, in addition to my legal qualifications, position and firm name.
The thought of being a Platonic Guardian fills me with dread, and yet addressing Laurie Penny’s claims in the last two paragraphs quoted (among many other claims) is precisely what people will expect of the lawyers who manage the new regulator when it comes into being. They have no idea how mind-bendingly difficult this is, how hard it is to walk the line between not only censorship and freedom of the press, but also the wider problem of persons of very similar background (the thing to remember about lawyers is the fact that we are lawyers; this is far more important than our gender, our race, or our religion; law is a process of intellectual rewiring) making decisions on behalf of persons who are unlike us in almost every way.
The greatest evil perpetrated by the tabloids is the arrogation to themselves of unelected power, when they claim to speak for the people but enjoy no mandate beyond sales figures. Clearly ‘something’ has to be done – I am with Nick Davies on that. However, I am worried that the Leveson Inquiry will respond ‘here is something, let’s do that thing!’ and it will be members of my profession who are invited to arrogate to themselves vast amounts of unelected power.
One of the follow up comments to mine opined (I hope in jest):
Let us abandon the Great War Against Awfulness, because it gives lawyers a headache!
We are probably doomed always to have ‘vast amounts of unelected power’ washing through society. I’d rather it was in the hands of people who gave a damn, than in those of reptiles who specialise in generating human misery to profit from.
Perhaps the gentlemen in question has forgotten that the jokes we now tell about journalists were once directed at lawyers, as was the contempt now routinely directed at journalists. Yes, really!
And, I might add, engaging concerned and thoughtful citizens to make taste choices on behalf of others only works if there is no rent-seeking or regulatory capture or confirmation bias, as is evidenced by the continued absence of an R18+ certification for computer games in Australia (the Australian computer games classification regime tops out at MA15+). This means that Australia bans an unusually large number of them, despite having an R18+ classification for films. Gamer Geordie Guy observes:
At least the average Australian game player – an early-30s man or late-20s woman according to industry statistics – can be confident decisions such as these are made by an arm’s length body that represents the length and breadth of Australia, right?
Members of the classification board that banned Syndicate are not politicians per se, but either the Attorney General or the Minister for Home Affairs appointed each of them. They represent everyday Australians in so much as out of the 12 of them almost all are tertiary educated, white, Australian-born members of a range of other boards and community groups. Nine span from their 30s to 50s with only two members in their 20s. Teenagers or older Australians are entirely unrepresented on the board excepting the director who doesn’t disclose his age but admits to two grandchildren. Classifications (or the refusal of one, ie bans), are handed down by panels of as few as three members that the director handpicks from the board under his exclusive powers.
Perhaps in acknowledgement that a likely decision by three middle-aged, university educated community group participants might not have captured every imaginary moral dilemma facing Australian adults, there exists a classification review board. While the review board is designed to review the decisions of the classification board, I would caution against optimism that it corrects things as per the stated aim of appointees being from “a range of backgrounds”. Four of the seven-member classification review board are middle-aged women with arts degrees; of them, three combine it with law. Two have degrees in psychology. There is only one man. All of them have rather extensive community group exposure (like other boards and committees); two even served on the same board (the Young Women’s Christian Association, of which all media-consuming Australians are surely members at least in spirit).
Having quoted all these people and made the observations above, I confess that I am no closer to a solution on any of this. Clearly, there is a difference between the gamer unable to play a game banned by the OFLC and the work of Ofcom (and what will be its press successor) in ensuring that media corporations do not break the law. However, both regulatory mechanisms have (will have) their origins in the policing of taste. Both say, in effect, ‘your taste is debased, so therefore we’re going to use the law to stop you feeding it’. The argument against policing the gamer’s taste just happens to be a stronger one, because there is no whiff of criminality involved.
Will we be reduced to a ‘taste in media’ version of the famous quip on pornography?:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [Emphasis added.]
— Justice Potter Stewart, concurring opinion in Jacobellis v Ohio, 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.
It’s one of those situations where I am truly at a loss.