In the report of the Independent Inquiry into the Media and Media Regulation, the Hon R Finkelstein, QC made the following statement: (From section 6.76 of the report)
” In the United States, free speech is given primacy among rights, and therefore the potential harm caused by restrictions on speech is thought to outweigh the potential harm caused by speech that is not restricted. In Australia free speech does not necessarily have the same primacy”
Could it be that our lack of a bill of rights is the reason that a respected Australian jurist treats freedom of speech with open contempt?
On the Report of the Independent Inquiry into the Media and Media Regulation: Part Four.
Suppression Of Dissenting Voices
In order to determine the purpose of a political initiative such as the Independent Inquiry into the Media and Media Regulation (IIMMR) it is important to examine both who is responsible for the initiative and what prompted them to proceed with that initiative. The Independent Inquiry into the Media and Media Regulation was the result of a campaign by the Green party, led by Federal Senator Bob Brown.
The Opening for Sen. Brown to call for the inquiry was the phone hacking scandal in Britain in which the now defunct newspaper “News Of The World” committed criminal acts in the pursuit of news. But what is the connection to Australia? News Of The World is owned by “News International” which is, in turn, a subsidiary of Rupert Murdoch’s “News Corporation”. There are several News Corporation Newspapers, notably, “The Australian” and “The Daily Telegraph” who have embraced editorial policies that oppose Sen. Browns vision for Australias future. In particular, on the Green parties belief in and proposed solutions for the threat of global warming.
Having been initiated as a result of conflict between News Corp and Sen. Brown over global warming, it is unsurprising that the IIMMR focused on reportage and commentary by The Australian and The Daily Telegraph on the subject of global warming and the Gillard governments response to global warming. In section 4.31 through 4.42 the IIMMR deals with this subject. In doing so, it gets to an inauspicious start. Quoting from “A skeptical climate”, a report published by the Australian Centre for Independent journalism, claiming that “overall, negative coverage of government policy outweighed positive coverage by 73 per cent to 27 per cent” and that ” negative coverage across News Limited papers (82 per cent) far outweighed positive coverage (18 per cent)” Finkelstein manages to leave out crucial information: these numbers omit neutral coverage of the subject. From the same report: “The Australian gave far more space to the coverage of climate change than any other newspaper. Its articles were coded 47% negative, 44% neutral and 9% positive”
The report contains a table showing reportage of Julia Gillards policy response to climate change:
|The Daily Telegraph||65%||27%||8%|
|The Courier Mail||57%||26%||16%|
|The Northern Territory News||53%||29%||18%|
|The West Australian||45%||33%||22%|
|Sydney Morning Herald||42%||23%||36%|
This paints a very different picture to the one preferred by Finkelstein: “Its headline finding was that, overall, negative coverage of government policy outweighed positive coverage by 73 per cent to 27 per cent”. Why omit neutral reportage from the statistics? Perhaps because doing so is less supportive of the conclusion the IIMMR was intended to obtain?
It is entirely proper, when government makes a proposal which will enormously increase that governments power, that the press should respond in a profoundly skeptical manner. Part of the purpose of the press, discussed in the IIMMR is for the press to act as a check on government. Nor is there any shortage of coverage on this subject from various perspectives, from negative through neutral to positive. In my opinion and on the basis of the information found in “A Skeptical Climate”, the Australian public was well served by the press on this subject. The suggestion that the Australian public was insufficiently exposed to material supportive of Julia Gillards policy response to climate change is entirely unsupported by facts.
The use of “A Skeptical Climate” by the Australian Centre for Independent Journalism is questionable in itself. From “A Skeptical Climate”:
“The words used to describe issues also frame the terms in which an issue is discussed. The carbon emissions reduction policy was originally referred to as the carbon pricing policy, although the Opposition leader Tony Abbott from the beginning referred to it as a ‘tax’. Under questioning, Julia Gillard agreed at a press conference announcing the policy on February 24 that the policy would be “effectively like a tax” (7.30 Report, 24 Feb, 2011). From then on, the word ‘tax’ was used more frequently than ‘policy’. This framing of the issue as a ‘tax’ tended to encourage a perception that the policy was aimed at individual consumers rather than large companies.”
This attempt to paint the use of the word “tax” in reference to the Gillard government’s response to climate change as somehow misleading unveils the publication’s partisan agenda. Gillard herself admitted that the policy whould be “effectively like a tax” and the claim that large companies would be the only entities affected by carbon pricing not only puts the authors of the report firmly in the left wing class warfare camp but is a bold faced attempt to mislead the reader into believing that individuals would not be affected by increasing the expenses borne by large companies. We are expected to ignore the fact that increased business costs get passed on to individuals by way of increased prices.
So why use, in an independent report, a publication so plainly committed to a partisan left wing perspective on the subject? It seems to me that the reason can only be that the individual using such a publication shares that perspective.
The above is all very interesting (to me, at least) but what on earth does it have to do with the title of this blog “Suppression Of Dissenting Voices”? It goes back to the fairness doctrine discussed, then airily dismissed with a perfunctory handwave by Finkelstein. I quote Bill Ruder, a public relations specialist for the Kennedy and Lyndon Johnson administrations who in the book “The Good Guys, the Bad Guys, and the First Amendment” (New York: Random House, 1976) is reported to have said: “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.”.
The CATO institute has published a document titled “Broadcast Localism and the Lessons of the Fairness Doctrine” by John Sample. I quote from that document: “In a report to the Democratic National Committee, the leaders of the campaign proudly noted: “Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts”
Which brings me to section 9.49 of the IIMMR “An enforceable right of reply is a desirable reform for the media. There are no significant moral or policy objections to such a right and while there are arguments against making a right of reply enforceable, the advantages of enforcement outweigh the disadvantages of leaving the matter in the hands of the very body that published the adverse material in the first place.”
An enforceable right of reply is a means that has, in the past, been used by the left to suppress political speech by right wing commentators. It seems obvious that it would be used as such once established here in Australia. Small wonder Bob Brown and the Green party are in such a hurry to implement the reccomendations of the Report of the Independent Inquiry into the Media and Media Regulation.
On the Independent Inquiry into the Media and Media Regulation Part 3: Unexamined Assumptions
In section 2 of the Independent Inquiry into the Media and Media Regulation (IMMR), from section 2.14 up to section 2.51 the report examines rationales for the maintenance of free speech. Covering 12 pages in all, Finkelstein covers various rationales for the maintenance of free speech.
- The search for truth, also called the marketplace of ideas
- Democratic discourse
- Self fulfillment and autonomy
- The fourth estate
Each of these rationales are discussed in detail with copious references to philosophers both alive and dead. They are then subject to criticism, almost as if the rationales are being examined then discarded as inadequate or flawed.
Finkelstein then proceeds to justify regulation of speech with bald assertion on his own authority and that of one Professor Stone, who made a verbal submission to the Inquiry. There is no search for historical justification from respected philosophers or revered public figures, there is no search for critics of the ideas which justify regulation of speech.
The implication is clear, at least to me. Finkelstein regards regulation of speech to be a default position, which must be disproven before his “court” rather than the reverse. That advocates of free speech stand in the position of prosecutor, burdened with the requirement that they prove their case beyond a reasonable doubt while advocates of regulation stand in the position of the defendant, required only to create in the receptive mind of the judge the seeds of reasonable doubt. Once again, Finkelstein has shown that he is steeped in the morality of government. That he regards as normal and proper the threat and initiation of the use of force. That restraining the state from exercising the use of force requires justification rather than that it is the use of force which requires justification.
Finkelsteins unexamined assumption is this: it is freedom that must justify itself, not regulation. Am I alone in finding this deeply frightening? Is it paranoid that this strikes me as a terrible harbinger of what the future holds for the Australian community?
On the Report of the Independent Inquiry into the Media and Media Regulation Part 2: Online Publications
Getting down to specific elements of the IIMR (the Independent Inquiry into the Media and Media Regulation) with which I take issue, I begin with section 6 of the executive summary. Finkelstein comes to the conclusion that the existing mechanisms for regulation of media are not sufficient to achieve the degree of accountability desirable in a democracy in part because online publications are not subject to the existing mechanisms. This is only partly true, the legal constraints that cover newspapers and mainstream media are equally applicable to online publications. For the rest, the justifications tendered in the report for regulation of the media can be found in section 9 of the IIMR. Section 9 addresses the subject of whether persons subject to adverse comment in the media should have a “right of reply” or if there should be a broader “right of access”. Many of the arguments found in this section are far less applicable in the online environment than is the case with print or television media.
- Access to means of distributing information in the online environment are accessible to people with minimal financial resources.
- There is no lack of diversity of information sources in the online environment
- Because of 1. and 2. there is no reason to suppose that readers need to be “made aware of competing versions of events and different opinions”
- There is no real need to “maximise freedom of speech” in the online evironment. The online environment is nothing but freedom of speech and attempting to maximise it by compelling people to say things with which they do not agree for this purpose defeats the purpose of free speech.
In my honest opinion, the true reason to desire to regulate online publications is not so much to ensure that the public has access to online publishing, because plainly, we do. It is rather, to ensure access to an audience. Am I, an obscure blogger without a single regular reader so far as I am aware, entitled to the audience held by NineMSN or by the Sydney Morning Herald website? It seems silly to suggest. Or at least, I would feel silly suggesting it.
Part One: Introduction
In my last post, I indicated that I would be making a single post on the Report of the Independent Inquiry into the Media and Media Regulation. This plan has been abandoned on the basis that such a post would have been something of a behemoth. For this reason, I am breaking the article up into individual posts. This, then, as the subheading suggests, is my introduction.
In Star Trek, The Next Generation, one of the most dangerous villains which repeatedly threaten the United Federation of Planets is the Borg. When the Borg arrive at a planet they intend to conquer, they transmit the following statement: “We are the Borg. We will add your biological and technological distinctiveness to our own. Resistance is futile”. Individuality in that culture is then destroyed and subsumed into the “hive mind” or “collective” of the Borg.
The Report Of The Independent Inquiry Into The Media And Regulation (Hereinafter referred to as the IIMR) ultimately represents the same struggle between the collective and the individual. Just as in the Borgs plan, the IIMR repeatedly faces a struggle between the rights of the individual and the power of the collective. Equally as in the Borgs plan, the IIMR strikes down the individual and subjugates the will of the individual to the will of the collective. The Hon R Finkelstein QC seems never to have met an individual right which is not trumped by the will of the collective.
The Hon R Finkelstein QC is so steeped in the culture and “morality” of government that force, upon which all government action is based, has equal moral standing with liberty. All collisions between the rights of the individual and the power of the collective are ultimately decided on the basis of the balance between the advantages and disadvantages of the relative considerations to the collective. But the rights of the individual and the power of the collective do not stand on equal moral ground. The power of the collective rests upon the initiation or threat of the use of force. The rights of the individual by contrast cannot rest upon that basis. To describe as a “right” anything that rests on the initiation or threat of the use of force is absurd.
Rights, in contrast to power, rest upon the inherent humanity of the individual and the ability of the individual to exercise that right without compelling, by initiation or threat of the use of force any other individual to enable that exercise. But in the IIMR, this unequal standing is never acknowledged. Not once. Always the collision between individual rights and the power of the collective is decided on the basis of what benefits there are to the collective. Small wonder then, that the Hon R Finkelstein QC invariably comes down on the side of the collective.
Next up, I’m going to start addressing specific concerns within the report. My first such post will look at whether it is necessary, as indicated by the report, to include online publications in the proposed regulatory environment.
I’m in the process of writing a response to the Report Of The Independent Inquiry Into Media And Regulation by the Hon R Finkelstein QC (hereinafter referred to as the IIMR). One paragraph jumped right out of the report and smacked me cleanly between the eyes:
“6.76 This debate in the United States bears out Schauer’s argument that the ‘chilling effect’ is less an empirical claim and more a value judgment as to which potential harms are to be preferred. In the United States, free speech is given primacy among rights, and therefore the potential harm caused by restrictions on speech is thought to outweigh the potential harm caused by speech that is not restricted. In Australia free speech does not necessarily have the same primacy. For example, in Australia great weight is given to preventing prejudice to a fair trial, so restrictions are placed on what the media can publish about matters that are sub judice. The United States strikes this balance differently.”
There you have it fellow Aussies. Freedom of speech is not a right, but a privilege which is outweighed by, well, read the report for yourself; I think (as in, I’m expressing an opinion here, just in case any legal mind reading this is stupid enough that I have to bludgeon them with that fact) you’ll find that the weight given to free speech by the Hon R Finkelstein QC is effectively zero. I struggle to find a single instance in the report where the value of free speech is given greater “weight” than competing considerations.
Here’s a case in point: having read sections 5.92 through 5.98, I wonder if the above paragraph might not be a cause for action on the part of the Hon R Finkelstein QC for defamation (hence my slightly testy aside). It is a statement that I firmly believe but on the basis of section 5.98 of the IIMR If prosecuted in court I may well find that my opinion is not in fact “honestly held”. Because the courts, after all, are in a position to know my mind better than I am.
Anyone want to place any wagers on whether or not I seriously considered making such remarks about an individual so much more personally powerful, wealthy and connected than myself? But that’s not a chilling effect, refer to section 9.2 of the IIMR where The Hon R Finkelstein QC makes no attempt to find countervailing opinion in the same way that he goes to great effort to find in the case of his remarks on the United States’ fairness doctrine. This prompts me to regard The Hon R Finkelstein as having predetermined the result of his inquiry and tailored his report to reflect that result (opinion again) rather than actually inquiring into much of anything at all.
Well, either the possibility is not a chilling effect (after all, I went ahead and published this article, right?) or the damage done to my freedom of speech is insufficiently serious as to justify any concern on the part of the wealthy and powerful who seek to regulate my speech. Hopefully my lack of readers will render my fears of prosecution baseless.
In any case, I’m going to continue working on an article which addresses the central struggle embodied by the IIMR; that between the rights of the individual and the power of the collective.
I apologize for all the parenthetical asides in this article; it’s a weakness in my writing style I’m not entirely certain how to eliminate and I’m publishing this article in something of a hurry while I work on a more polished and much longer commentary on the IIMR