Thursday, 3 January 2013

Freedom of the press is not the same as freedom of speech

Freedom of the press is often conflated with freedom of speech, a conceptual error that leads to excessive deference to media corporations. Properly understood, the freedom of the press requires that mass-media corporations be free from government control, but not that they be free from regulation in the public interest. Whether or not the press supports rather than impedes individuals' freedom of expression, public reasoning, and the accountability of politicians depends on how  the media market is set up and policed. 

Freedom of speech is a concept that pertains to individuals and is almost inseparable from respecting freedom of thought (see Mill, On Liberty). Just as every individual should be permitted to think controversial thoughts that many people find disagreeable or offensive (against the existence of god, say), so they should be allowed to say them. Its justification has two components. First, the intrinsic value of freedom of expression to the speakers, who get to share their opinions and ideas with others. Second, the indirect benefits that a diversity of opinions produces for society at large: ideas and arguments can be publicly tested and improved, with the results available for all.

Freedom of the press is quite a different kind of thing, since it pertains to a certain group of corporations (mass-media companies), rather than individuals. The key difference is that because corporations are not people their speech can have no intrinsic value (pace Justice Kennedy's majority opinion in Citizens United). Corporations, unlike individuals, are not sophisticated enough agents to have thoughts of their own that they burn to express to others, and so they cannot suffer from censorship as people do. Indeed, because corporations lack moral agency generally, their 'moral' rights can only be justified on utilitarian grounds: recognising corporate personality and property rights is a legal wheeze that makes the capitalist order function more efficiently, rather than a recognition of some underlying intrinsic moral claim. (For corporations to gain real moral rights, they would have to be designed in such a way that they can conduct morally sophisticated reasoning and give themselves a moral law. But that's a subject for another post.)

Instead, the justification for freedom of the press is purely instrumental. First these companies provide the medium through which freedom of speech is realised (outside of books, and nowadays the internet). Second is their political function in a democratic society. They have the capacity to enhance public reasoning by informing the public about the important issues of the day, and to incentivise political office holders to serve the public interest by providing a means for the voting public to observe what they get up to.

These are good reasons to care about the health of the press and to keep it free from government control. After all, they are the very same reasons autocracies censor the press so severely. Yet they only refer to the capacities of the mass media. Simply because a free press can support freedom of speech and democracy, and can threaten dictatorships, does not mean that it necessarily does so. For a mechanistic justification like this to be successful, the machine must be shown to work in practise as well as in theory. And we can see that in the real world media corporations with the power to serve the public interest often don't.

This should not be a surprise. Although corporations are not moral agents, they do have interests and they can be understood as rational agents in the limited sense that they can maximise a production function. While a few media corporations are structured with complex production functions that explicitly include commitments to serving the public interest (e.g. The Guardian or the BBC), most media corporations are not. Thus, the reason they mostly stick to infotainment and gossip rather than what might properly be called journalism is that their managers have a fiduciary duty to further their corporation's private interests, not to serve the public interest. 


A free press informs people of what it wishes to inform them, which is not necessarily what is objectively important. As gatekeepers to the attention of millions mass-media companies have substantial power over whose opinions and which facts may be brought to the public's attention; to promote certain opinions or truth claims that further their own (commercial or political) interests; and to swamp alternative opinions in a deluge of counter-speech. This editorial power can be employed systematically to create support for particular attitudes or ideologies. Like the British Daily Mail's hate campaign against Muslims (and just about every other minority they can think of), the Wall Street Journal's assault on the conspiracy of global warming, or Fox News' war on the 'reality based community' in service to the Republican Party.

Far from being merely a neutral medium through which truths are made public and politics made democratically accountable, media corporations are major political players in their own right. Yet they are not themselves democratically accountable, since they are corporations beholden only to market forces and their owners. They are free to use their political influence to further their private interests, as a kind of 'super-lobbyist', whether at the local (e.g. San Diego) or national level (e.g. Rupert Murdoch's campaign to hobble its major British competitor, the BBC).

It is true that the media's direct political influence on elections is marginal, like advertising's direct influence on purchasing behaviour - The Daily Mail's support for the fascist Oswald Mosley didn't bring him much electoral success. (Though there are exceptions, particularly in quasi-monopolistic media markets like Berlusconi's Italy.) But that marginal influence on voters can still be leveraged into considerable influence on politicians, either to promote the corporation's pet causes or to promise it special treatment (like exemptions from anti-trust legislation). First, because many elections are decided at the margins, the possibility of even a little influence can be significant. Second, because they can cause a lot of trouble for particular politicians if they choose to, by blanketing them with so much negative coverage that they cannot do their job. This allows media corporations to bargain directly with or extort concessions from  democratic politicians, over the heads of the public and behind our backs.


Not only do the mass media manifestly fail to serve the public interest as well as they could. They also inflict real harms on individuals. As Greg Miskiw, assistant editor at the British News of the World, famously put it, "That is what we do - we go out and destroy other people's lives." The same newspaper was recently discovered to have been hacking people's phones (including that of an abducted teenager), impersonating people, bribing serving police officers and other public officials, extorting political favours, blackmailing celebrities, and so on. And it seems that other British newspapers were doing much the same. Freedom from regulation for powerful mass-media corporations is a de facto license to plunder and terrorise society with impunity, a metastasised capitalism.

The press routinely argues that whatever the public is interested in is the public interest, so the commercial popularity of their offerings justifies them and their methods. This is self-serving casuistry. The fact that many people are willing to buy something doesn't in itself determine whether it should be for sale. At least, we don't generally accept that argument with respect to other things many people would like to buy, like sex, kidneys, children, hard drugs, citizenship, votes, etc. One wants a bit more of a justification for selling such things than a demand curve provides.

Take the issue of privacy. Where some people's private lives are put on sale without their consent (from their romantic relations to their children's health problems) there is a clear conflict with the core principles of liberalism. Individuals have an intrinsic right to live their life for themselves. The 'freedom' of the press here imposes an oppressive social scrutiny on people's most intimate behaviour and relationships that in turn imposes extensive and debilitating self-censorship on how they live and express themselves, even in their own homes.

There is no balance of rights to consider here. Media corporations have no intrinsic right to spy through people's windows (any more than 'peeping Toms' do). The public at large has no intrinsic right to gossip about the private lives of other people, even those of 'celebrities'. The perception that they do is a rationalisation of the status quo, in terms for example of some notional 'social contract' between public figures and society as a whole. Such a social contract fails the veil of ignorance test: no one who thought it might possibly apply to them would sign up to it (any more than people would sign up to racism if they thought they might be the ones getting spat on).

The closest I have seen to an instrumental justification for public gossip about private lives is the specious but much repeated claim that because the French media are subject to stronger privacy laws they are more obsequious and do not hold their politicians to account. Of course, one can find media obsequiousness everywhere, such as in the American press's supine acquiescence to government defined national security interests for years after 9/11. And even on the most generous reading it hardly explains why the public should have the right to gawk at Kate Middleton's breasts.


Many of those who defend the freedom of the press from any external regulation argue that media companies can regulate themselves through competition, on the general model of 'the market'. Thus the moral character of media companies is irrelevant: competition with other papers/TV stations for readers/viewers will keep them honest and focused on the public interest.

There is certainly something to this. Competition for readers/viewers does keep media companies on their toes  (as can be seen when competition disappears e.g. Denver) and also provides the revenues which allow the media to be independent of government. And it is also true that the media spends quite a lot of time scrutinising and publicising each other's failures. (For example, The Guardian newspaper's years long investigation into the News of the World's phone hacking and police cover up that eventually led to that paper closing and a parliamentary inquiry.)

Yet competition is not a panacea. As the Great Recession has reminded us (yet again), the belief that free markets in the real world are necessarily efficient and self-correcting is more a form of magical thinking than science. Indeed the limits of competition help explain the failures of the media to perform the service to society that justifies its special status. Even if the mass-media were not oligopolistic (dominated by a few major players) and even if those corporations were only concerned with pleasing customers rather than being political players in their own right, we still could not rely on competition alone. In particular, a market with lots of rivalrous competition is likely to under-supply public goods (positive externalities) and over-produce harms to 3rd parties (negative externalities).

Public goods are those which, like public interest journalism or the general trustworthiness of news-media, are very valuable to society, but are insufficiently rewarded by the price mechanism to be worth anyone's while to adequately supply. Competition works against the supply of public goods exactly because under competition there is no escape from the domination of market forces. If providing these goods is not selected for and rewarded by the market, no corporation will have a rational incentive to provide them.

What media companies are competing for, basically, is people's attention. That attention is cashed out by charging consumers directly and reselling their attention on to advertisers. Any media corporation that deviates from this basic concern will eventually lose out against its competitors. For example, The Guardian's work on exposing the phone hacking scandal was much admired but hasn't translated into paying readers - by many accounts the paper is close to bankruptcy. Real public interest journalism is expensive and not necessarily popular. Junkfood is more profitable. Public subsidies may be required to provide the media with the right price incentives to produce the quantity of public interest journalism that a democratic society has need of.

Competition also generates pollution - harms to 3rd parties. If the market fails to price the costs of bad journalism properly, then it will be oversupplied to the general detriment of society. The term 'Yellow Journalism' was coined to describe newspapers' heavy use of sensationalist and often manufactured stories in their competition for circulation in 1890s New York. At the extreme, Randolph Hearst's relentless jingoism in pursuit of sales is credited with bringing America to declare war on Spain in the world's first 'media-war'.

Yellow journalism inflicts direct and indirect harms on society. There are the many individuals and vulnerable minorities who are direct victims of vilification for profit. And there is the spread of pernicious though unfounded worldviews - like excessive fear of violent crime, Islam, sexual predators, etc - which undermine the quality of public reasoning and lead the public to demand terrible government policies, like mass-incarceration. 

The case for regulation

Many of those who argue against external regulation of the press do so, in spite of these relatively obvious problems with self-regulation, because they reject the idea of government control. They are right to object to government control, but wrong to conflate it with regulation. Most markets and most products in capitalist countries are subject to regulation by laws and public institutions, while being independent of direct government control. Cars have to meet all kinds of regulations about safety, fuel-efficiency, etc, but they are not designed by government bureaucrats nor are their production and distribution decisions determined by politicians. Properly designed regulation supports competition by making its outcomes more productive of social value than they would otherwise be. And, as I have argued, it is the public benefits of the free press that justify its special status.

Free competition between economic actors (or any other kind of competition) will only produce good things rather than bad things if it is structured and policed correctly. First, there have to be clear and well enforced rules, to prevent actors choosing other ways of doing business that are more convenient for them but also more harmful to society. Second, those rules have to be such that they push the competitors to produce socially valuable outcomes (like informing the public and holding power accountable) as a byproduct of trying to win.

When competition is a genuine free-for-all, companies trying to maximise profits are forced to join a race to the bottom. That is not only bad for the public (as in the Chinese food companies that adulterated their milk with poisonous substances) but also for the industry as a whole (no one in China trusts the milk anymore). Free-for-all competition can sometimes undermine and reduce markets rather than contribute to their expansion and flourishing. Thus, one of the primary benefits of well-designed press regulation is to put a floor on the kind of conduct that a free for all competition for readers/viewers otherwise naturally leads to. Among other things, that allows media companies the genuine freedom to pursue public interest journalism, and operate within journalistic ethics, without fear of losing readers to less scrupulous competitors.

What kind of regulation?

Exactly what form the regulation of the press should take is a separate issue from the general case for regulation that I have made, and should be proposed by people rather more informed about the industry and the law than I am. But here are my own suggestions for the general principles it should aim to achieve.
  • Legal force without government control. The media market should be regulated and media companies should be accountable to the public, but the government should not be the agent that enforces this. The 'guardians' of the free press should be an independent (and independently appointed) institution.
  • The separation of politics and media. If the media is to be trusted in its role of holding politicians to account then the public needs to believe it is independent. (Tony Blair's secretive relationship with Rupert Murdoch culminated in becoming godfather to his child.) Just as the separation of church and state is in the best interests of both, so politicians should be banned from having any private relationship with media corporations and their representatives.
  • The moral character of media companies. Contra Mandeville, private vices in this market do not make for public virtue. Journalistic ethics requires internal institutional commitments and arrangements which market competition cannot be relied on to induce.  Given the special importance of media companies to the functioning of a democracy (and the special privileges they get as a result), it seems reasonable to require that they internalise more complex ethical requirements than mere profit maximisation. For example, by including "serving the public interest" in their company charter as a goal at the same level as serving the shareholder.
  • Limits on market share. Allowing a nation's media to be dominated by a handful of corporations results in a cosy oligopoly that distorts the operation of the market for ideas and undermines the checks on quality provided by rivalrous competition. Given the national character of democratic politics, those limits should be even stricter for foreign owned corporations.
  • Content limits. Some subjects (like the private lives of public figures and their family members) and some investigative methods (like long distance photography), should be presumed to be out of bounds. Of course sometimes news articles based on these are in the public interest. In such cases they should be published together with a formal justification in terms of the public interest (which is something different than either truthfulness of customer interest).
  • Subsidies. The undersupply of public interest journalism because it is hard to make enough money from (especially in the internet age) undermines the quality of public reasoning and political accountability. A public subsidy programme would transfer some of the value that good journalism creates for society back to the companies who create it. Yet any such subsidy programme should be independent of government control. (One idea, by Bruce Ackerman (pdf), is an internet voucher system, in which citizens 'Like' the public interest contribution of articles they read online and the subsidy pool is divided between media companies on the basis of their votes.)


The freedom of the press is a means to important ends: holding power accountable and informing people of matters of public interest. It should be understood as a maxim, not a dogma. Indeed, this is already recognised in practice - media companies in every liberal society are regulated by laws about national secrets, libel, obscenity, incitement, and so on. 

Yet there remains an excessive deference to mass-media corporations founded on a misunderstanding of who freedom of speech is for and a romantic notion of the fourth estate's services to democracy, which has prevented much public discussion of whether the media can and should do better. Thus, the politicisation of the media is an old story that induces no outrage. The harms generated by poorly regulated competition are excused as unfortunate but somehow necessary. The conundrum of who may guard the guardians of our democratic politics is apparently too exhausting to ponder. I do not suppose that the press can be made perfect, and I do not believe such a goal would be compatible with the messiness that a genuinely free society produces and requires. But surely it could be made to do much more good and much less harm than it presently does. 

This essay has been translated into Spanish by Francisco de Zavalía and published on his blog Entremedios.