Media Freedom. Damian Tambini

Why Protect Media Freedom?

There is a prior question that must be dealt with first: why is freedom of the media a good thing? Liberal democratic theory has in the past conflated media freedom with freedom of speech and expression, but more recently, clear distinctions have been drawn between media freedom/press freedom in particular and freedom of expression/freedom of speech in general. In philosophical accounts and also jurisprudence on freedom of speech and expression there are three standard arguments: the argument from truth, the argument from democracy, and the argument from self-expression. Freedom of expression is seen as good because it enables a free marketplace for ideas in which the truth can emerge,³⁴ because it is an essential precondition for democratic self-government,³⁵ and separately because it provides the benefits of human flourishing and autonomy.³⁶ Recent scholarship has pointed out that these fundamental justifications do not apply to press and media freedom in the same way that they apply to speech and expression as human rights.³⁷ Essentially this is a difference of emphasis: individual freedom of speech and expression are necessary for individual well-being and human flourishing. In contrast, press and media freedom, as rights held by institutions, cannot rely directly on the argument from human autonomy. Media institutions have particular responsibilities, and arguably particular privileges and protections because of their value to society and especially the democratic role they play.³⁸ Speech freedom as an individual right is a good in itself, whereas press and media freedom are instrumental goods: they are to be protected insofar as they demonstrably do achieve the goods of truth seeking and democratic self-government. The instrumental nature of this freedom is important: it enables what I will call the ‘conditionality’ between rights and duties.

      The First Amendment to the US Constitution protects ‘freedom of speech – or of the press’. Whilst this suggests that freedom of the press is distinct from freedom of speech, the development of the law since then has tended to deny the existence of an institutional press right in the US.³⁹ Thus Onora O’Neill notes that media freedom cannot benefit from the argument from human autonomy because, unlike individuals, organizations cannot, strictly speaking, express themselves, having no self to express.⁴⁰ But in some senses, media organizations are more important and deserving of specific privileges. According to Eric Barendt: ‘Free press clauses and other provisions guaranteeing media freedom should, therefore, be understood to confer on all communications media – a term not confined to the established press and broadcasting media – some constitutional rights and immunities which are not conferred on individuals under freedom of expression or speech clauses.’⁴¹

Such abstract normative theory can only provide limited guidance in the cut and thrust of legal and policy disputes. One tension in both US First Amendment and ECtHR jurisprudence regards this issue of whether ‘media’ should enjoy the same expression rights as humans.⁴² In the US context, Judge Learned Hand and, later, Alexander Meiklejohn justified First Amendment protections in self-government and democratic deliberation.⁴³ From this is derived the notion that the media should have more protection than expressive speech. Others, for example Baker⁴⁴ and O’Neill,⁴⁵ counter that it is humans rather than the media that should have more protection. In the US there is a general preference for denying ‘the press’ any particular organizational protection as an institution. As we will see, our current predicament is that two key jurisdictions, namely the US (through the prism of the First Amendment) and the members of the Council of Europe (through the prism of Article 10 ECHR), are pursuing different approaches, with the Europeans constructing ‘the media’ as a legal category with special rights and privileges, and the US preferring to treat the press and other media as though they were speakers like any other.⁴⁶

      It is worth noting that several established tenets of this normative theory of freedom of communication are controversial.⁴⁷ Philosophers such as O’Neill, for example,⁴⁸ have pointed out that liberty appears to be no guarantee of the emergence or acceptance of truth. Relativists in philosophy and Foucauldians stressing the role of power in determining the acceptance of truth challenge the Millian view of the free marketplace of ideas, and there are many instances in which – in scientific communities, for example – highly regulated speech is required for the emergence of truth. The same could be said of courts. This is a highly contested philosophical territory. Suffice it to say at this point that not only the extent to which liberty leads to truth but the nature of truth itself may need unpacking.

      So the crisis of media freedom is one of internal contradictions, compounded by threats to democracy. There is a need for a restatement of the basic role and function of media freedom, and a global settlement for democracies resolving doctrinal and constitutional differences, in particular between the US and the EU. In this context it is important to restate the normative principles of freedom of speech, as Timothy Garton Ash⁴⁹ and others have done. But it is also important to tease out and engage with the genuine contradictions and unresolved conflicts in the theory and practice of media freedom.

      If a theory can find some way to resolve the deep contradictions, tensions and ambiguities that follow, then it will be easier to implement across a range of aspects of law and policy. Recent disputes over social media reveal profound disagreement about what the media are, and the extent to which they should be free. Because of the need for widely agreed democratic ‘rules of the game’ it is hugely important that law, policy and ethical media practices are based upon widely shared and understood ideas of media freedom. Liberal democracies cannot afford the narcissism of small differences between their approaches to media freedom and must resolve their contradictions. The following are the questions which are the most important to address and resolve.

Is Media Freedom Absolute?

Few would argue that media freedom is or should be absolute. Media are free, but within boundaries set by certain ‘conditions and responsibilities’, according to the ECHR. Even in the more permissive US, speech has been subject to restrictions, albeit only speech judged to risk causing a ‘clear and present danger’⁵⁰ or ‘imminent lawless action’. Restraint of speech or media is always a risk in a democracy because it requires an institution to decide if media freedom is deserved, either in the setting of standards (by Parliaments, for example) or in the application of the law.⁵¹ The media have particular responsibilities due to their impact. As an extreme example, the finding of the International Criminal Tribunal for Rwanda that two FM radio stations had deliberately incited the genocide of the Tutsis in Rwanda in 1994 set out the principle that media freedom may be restricted, at least in cases of the worst excesses: the question is how to balance freedom with other rights and the rights of others and make sure that the regulator does not slide into censorship. The radio station Radio Milles Collines was dominant within one language group, and there was a dearth of alternative viewpoints available when it was used to issue specific instructions to groups of people to assemble, armed, in certain places and to coordinate actions. According to the judgement of the Tribunal: ‘The power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.’⁵² UN free expression standards and the case law of regional human rights courts and national courts such as the US Supreme Court have attempted to generate standards on what is a justified restriction of speech, and how to balance the competing rights of speakers, listeners, bystanders and the subjects of communications.⁵³

What Are Media?

      If media, as the subject of liberty, enjoy privileges, then it is necessary for someone to decide who or what is or is not media: whether, for example, media privileges extend to bloggers, influencers or algorithms. But whoever defines who or what benefits from media privilege gains censorship power. In some cases, related questions, such as whether an activity is ‘journalism’ or ‘news’, are relevant to decisions about whether media privilege can be awarded,⁵⁴ but the same problem arises. At the risk of overstating what is a general tendency rather than an absolute rule, US law tends to