Threatening a Free Press, in Britain and the U.S.

The phone hacking scandal shouldn't necessitate a new regulatory system.
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News Corp Chief Executive and Chairman Rupert Murdoch holds a copy of The Times newspaper as he leaves his home in London July 20, 2011, at the height of public outrage over the phone hacking scandal. (Andrew Winning/Reuters)

Stringent new press regulations proposed by British politicians in a tri-partisan compromise amount to a "press crackdown" that will "chill free speech," according to the New York Times. "It would be perverse" if the new regulatory system, enacted in response to the phone hacking scandal, "ended up stifling" newspapers, like The Guardian, that helped bring the scandal to light.

The Guardian, however, disagrees. What the Times views as a "crackdown" on fundamental liberties, the Guardian considers a "reasonable solution" to the excesses of the tabloid press (which the Guardian, no doubt considers itself far above.) A new regulatory body, to be authorized by royal charter and empowered to investigate alleged abuses, mandate apologies, and levy substantial fines, is "no cause for hyperventilating," a Guardian editorial chides. "We hope that within a reasonable period, an improved system of independent regulation will be up and running ... we doubt John Milton will be spinning in his grave."

Other British publications are much less sanguine and seem inclined to boycott the new system (putting them at risk for "exemplary damages.") In part, this appears to be a class war between tabloids (like The Sun) and their presumptive journalistic betters. Brendan O'Neill, editor of spiked-online, notes that the Leveson Inquiry into phone hacking, which laid the groundwork for the new regs, quickly turned "from discussing actual crimes at Murdoch papers (the hacking of phones) to discussing Page 3 girls, paparazzi photos, invasions of celebs' privacy and so on -- what was depicted as an investigation of certain practices actually became a show trial of ethics, the ethics of both tabloid papers and by implicit extension the dimwits who read them."

Opposing reactions to the new press regulations also divide politically, to some extent, between the liberalism represented by The Guardian and the conservatism of The Spectator and the Telegraph. And, perhaps not coincidentally, political support for a regulated press reflects the general hostility to offensive speech popularized by liberals and codifed in British law. In a slight concession to free speech, the British home secretary recently announced that the government would not oppose an amendment to the Public Order Act, deleting prohibitions on insulting speech. But "abusive" speech remains illegal, protecting politicians from outraged constituents: A woman protesting disability cuts was recently convicted of a public order offense for accusing Prime Minister David Cameron of "having blood on his hands." Her words could "hardly be more insulting to anyone, whether a politician or not," the judge declared.

"It can't happen here," you might say, with some justification. Hateful or profoundly upsetting speech still enjoys constitutional protection. But, as I often lament, mere offensiveness, vaguely defined, is routinely prohibited on college and university campuses; (private institutions are not restrained by the First Amendment.) Liberal support for prohibiting allegedly discriminatory words, equated with discriminatory actions, is strong here as it is in Britain, and the censorship that reigns on campus may not always be contained there. Consider Philadelphia Mayor Michael Nutter's demand that the city's Human Relations Commission investigate Philadelphia Magazine for publishing an article on race that the Mayor found offensive. At the Wall Street Journal, James Taranto gleefully skewered Nutter's righteous ignorance, but he is hardly alone in his commitment to freedom for the speech he likes.

Nutter's complaint will prove futile, but the press faces much more serious threats from the government, as the Bradley Manning/Wikileaks case demonstrates. American politicians would probably hesitate to propose a licensing system, but they might support prosecuting the press under the Espionage Act. Former Senator Joe Lieberman found the New York Times guilty of "an act of bad citizenship," at least, for working with Wikileaks. "Whether they've committed a crime, I think that bears very intensive inquiry by the Justice Department," he declared.

All things considered, publishers are better off being fined by a press watchdog than prosecuted for espionage, but members of the public are worse off in either case. The phone hacking that sparked investigation of the British press is and should be illegal; punishing and, ideally, deterring it doesn't require a new regulatory system. Insults, alleged libels, and much less egregious affronts to privacy are, however, the price of a free press. It requires us to tolerate distress.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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