Thoughtful people disagree about the proper role of
the news media. Despite these disagreements, there
are standards for the privileges and responsibilities of
a free press in a free society.
A Good Environment for Fostering Journalists
7
National legal systems vary. Some have detailed and
precise statutory schemes, others have a mix of statutes,
regulations, and case law.
A Framework for a Free Press
15
A useful starting point create a framework for a free
press is to consider what rights are essential in order
for journalists to do their jobs.
Self-Regulation In Lieu of Litigation
39
Journalists and news organizations make mistakes.
Courts offer aggrieved individuals remedies. Self-
regulatory mechanisms offer a valuable alternative.
The Responsibilities of Journalists
41
Many individual media organizations and journalists’
associations voluntarily adopt codes or standards of
practice as guideposts to help journalists determine
the best way to do their jobs.
New Media, Citizen Journalists, and Bloggers
51
The freewheeling world of the blogosphere seems like
the last bastion of truly free speech. Bloggers are a law
unto themselves. Or are they?
Free Exchange of Information and Enhancing Civil Society
57
Journalism thrives best where the rule of law is respected. A
free press is best protected through a national constitution
or by statutory or common law.
[ iii ]
[ I n t r o d u c t i o n ]
But the peculiar evil of silencing the
expression of an opinion is that it is robbing the
human race; posterity as well as the existing
generation; those who dissent from the opinion,
still more than those who hold it.
John Stuart Mill
English philosopher and economist
1806–1873
[ iv ]
[ M e d i a L a w ]
Introduc tion
Thoughtful people disagree about the proper role of
the news media. Some believe that journalists should
support government and supply the public only with
information the government deems appropriate. Some believe
the press instead should be the government’s watchdog,
searching out and reporting on abuses of power.
Some want the press to be an advo-
est corridors of power, to the owners of
cate, to champion causes, and to take po-
the news organization, or even if it leads
litical positions. Others believe the press
to death, as was the case with investiga-
should be objective and nonpartisan.
tive Russian journalist Anna Politkov-
Some believe that the press should re-
skaya, gunned down in a contract killing
spect and reflect social institutions and
in Moscow in 2006.
traditions. Others believe that the press
A free press is responsible. Per-
should question and challenge them.
ceptions of responsibility vary
This book suggests that despite these
from country to country, and
disagreements there are standards that
even from year to year. For many, the
describe the privileges and responsibili-
standard in times of peace and stability
ties of a free press in a free society.
may seem very different than in time of
A free and independent press is
war or national emergency. For example,
essential to any free society. But
just a few months after the September 11,
what do we mean by a free press?
2001, attacks in the United States, a sur-
In this book, we mean a press that is not
vey conducted by the Freedom Forum’s
subject to undue government control and
First Amendment Center reported that
regulation, one that is free from undue fi-
46 percent of Americans polled believed
nancial influence from the private sector,
that the press had “too much” freedom,
including advertisers, and economic or
a figure that certainly was higher than
business pressures from private sector
before the attacks, or the 39 percent re-
businesses A free and independent press
ported in the 2009 survey.
provides its readers, viewers, and listen-
Yet some essential principles remain
ers with the information they need to par-
constant. A free press must seek truth and
ticipate fully as citizens in a free society.
report it. It must be tireless in seeking
A free press is courageous and
and achieving accuracy. The press must
will pursue those stories that
never knowingly publish a falsehood.
are important to its readers and
Most societies would agree that even
viewers, without fear or favor. It will chal-
the most free press must exercise its
lenge assumptions, it will question au-
freedom with a clear understanding
thority, and it will seek truth, no matter
that actions and editorial decisions have
where that search may lead—to the high-
consequences, some of them significant.
[ 1 ]
[ I n t r o d u c t i o n ]
The press has great power to affect the
abridges freedom of speech or freedom of
lives of millions of people. Like any oth-
the press.
er powerful institution, it must be pre-
That absolute language was drafted
pared to listen to complaints, to explain
by revolutionaries shortly after the Amer-
its decisions to readers and viewers, and
ican War of Independence (1775–1783),
to acknowledge and correct mistakes.
during a time of great optimism, but also
But it must also be prepared to take un-
of great uncertainty. The nation’s courts
popular positions and to face critics
have, over the two hundred-plus years
bravely when important principles are
that followed, interpreted the First
at stake. Some may call this arrogance.
Amendment as powerful, but perhaps
I call it courage.
not quite absolute.
The United States Supreme Court has
Freedom of Speech and
made clear that certain types of speech
a Free Press
I
are not protected by the First Amend-
n the United States, where I live and
ment: publishing details about troop
where I do most of my research and
movements in wartime, for example.
teaching, the press is for the most part
Other exceptions would include restric-
free from government controls as a matter
tions on obscene speech or on so-called
of law. The First Amendment to the U.S.
fighting words that could predictably in-
Constitution prohibits Congress, or state
cite violence or criminal actions. And the
legislatures, from passing any statute that
news media are almost always subject to
Above: Andrew Hamilton defended John Peter Zenger, publisher of the New York Weekly Journal, who was charged in 1735 with seditious libel for criticizing the Royal Governor. Hamilton argued the truth of Zenger’s publication was a defense against seditious libel. The jury acquitted Zenger; an action Hamilton praised: “You have laid a noble foundation for securing to ourselves that to which Nature and the Laws of our country have given us a Right—The Liberty—both of exposing and opposing arbitrary power by speaking and writing Truth.”
[ 2 ]
[ M e d i a L a w ]
laws of general applicability—that is,
pany for which her spouse works. Or it
laws that apply to everyone but that do
may forbid a reporter to take part in a
not single out the press for special obli-
protest march, or to display a political
gations or punishment. For example,
sticker on the fender of his car or a plac-
laws that prohibit the interception of
ard in his front garden, or to wear a na-
telephone conversations without permis-
tional flag in her lapel as she reports the
sion apply to journalists as much as they
news. Or it may prohibit a reporter from
do to corporations.
accepting even a nominal gift from a news
But even these exceptions are tem-
source. Guidelines like these are intended
pered by a strong tradition that there
to maintain both the reality and the ap-
always will be a presumption against
pearance of journalistic independence.
any government attempt to stifle the
It would seem unnecessary for ethical
free press. As an American judge once
guidelines to address the necessity for
wrote, the default position for the press
accuracy and truth-telling. But after
is to publish. Government should bear
journalists like Jayson Blair of the New
the burden of justifying any restraints.
York Times either fabricated or plagia-
This formula preserves the watchdog
rized the news stories they submitted to
role of the press and facilitates govern-
their editors, many organizations have
ment accountability.
revised their ethics guidelines to make
clear that neither practice can ever be
Press Accountability
B
accepted or condoned by a responsible
ut who watches the watchdog? Who
news organization.
ensures that the press will be ac-
Sometimes ethics and the law inter-
countable? In some countries, the answer
sect. In Northern Ireland, for example,
is the government. Laws, statutes, and
Suzanne Breen, the Belfast-based editor
codes spell out in detail the conduct re-
for Dublin’s Sunday Tribune, faced a le-
quired of news organizations. In these na-
gal and ethical dilemma. Breen had been
tions, journalists’ rights often depend
telephoned by an individual who claimed
upon fulfillment of responsibilities. The
responsibility for murdering two soldiers
rub is that the government’s definition of
at Massereene Barracks in Antrim. The
responsibility may differ greatly from that
police demanded that she turn over her
of the press itself, or even the public.
cell phone, computer records, and notes
In other countries, the answer is, the
about her contacts with the paramilitary
press itself, and its readers and viewers.
Real IRA organization. Breen resisted,
In some parts of the world, news orga-
arguing that to do so would breach her
nizations or individual journalists sub-
professional obligation to protect the con-
scribe to ethical codes of conduct, like
fidentiality of her sources. She also can-
that of the National Union of Journal-
didly acknowledged that complying with
ists in the United Kingdom. Other coun-
the law enforcement demands could en-
tries impose ethical standards as a matter
danger her life, and the lives of her fam-
of law. In the United States, individual
ily members. But if she defied the order,
news organizations have adopted their
Breen faced the prospect of up to five
own ethical guidelines. Typically, these
years in jail for contempt.
codes or guidelines set out the institu-
In June 2009, a judge in Belfast ruled
tion’s rules governing financial and oth-
that compelling Breen to surrender her
er conflicts of interest.
news-gathering materials would put her
For example, an ethical guideline may
life at risk in contravention of the Euro-
prohibit a reporter from covering a com-
pean Convention on Human Rights.
[ 3 ]
[ I n t r o d u c t i o n ]
By contrast, in the United States, New
publish the name of an individual who
York Times reporter Judith Miller re-
has been sexually assaulted. But is it the
fused to cooperate in a criminal investiga-
right thing to do?
tion seeking the identity of a government
Is it right for a journalist to make fun
official who had revealed the identity of
of a public official or to lampoon a name
a covert intelligence agent. Miller defied
or image that is sacred to a particular
orders to testify, even after judicial rul-
ethnic or religious group? In the United
ings that journalists possessed no special
States, after the pornographic Hustler
privilege to decline naming confidential
magazine satirized the outspoken cler-
sources. She spent 85 days in jail in 2005.
gyman Rev. Jerry Falwell, the Supreme
Some judges and members of the public
Court ruled that a free society must tol-
argued that journalists can never hold
erate even “outrageous” speech in order
themselves above the law. But the ethics
to guarantee robust public debate and
policies of most news organizations would
discussion. As one justice once wrote,
require a reporter to honor a promise given
“There is no such thing as a false idea.
to a source, even if it means going to jail.
However pernicious an opinion may
Legal and ethical provisions vary from
seem, we depend for its correction not on
country to country. Reasonable people—
the conscience of judges and juries, but
and even journalists themselves—may
on the competition of other ideas.”
disagree on how they should apply in a
On the other hand, in March 2008, the
particular situation and whether they
United Nations Human Rights Council
strike the proper balance between com-
adopted a resolution condemning “defa-
peting societal interests.
mation of religions.” And many countries
retain, and enforce, statutes that make it
Privacy and Libel
I
a crime to insult or “offend the dignity”
s it ever appropriate for a reporter to
of any person, even a public official—even
violate an individual’s privacy? In the
if the underlying facts are true.
United States, the Supreme Court has
The Supreme Court of the United
ruled that it is lawful for the press to
States has never upheld a government
Above: New York Times reporter Judith Mil er was jailed for contempt of court for refusing to reveal a confidential source. Mil er, accompanied by her legal team, leave the U.S. District Court in Washington, DC, on June 29, 2005.
[ 4 ]
[ M e d i a L a w ]
attempt to stop the press from publish-
to other fundamental rights, such as the
ing classified information. Fierce debates
right to a private life or, as an American
over whether journalists can be crimi-
jurist once wrote, “to be let alone.”
nally prosecuted under espionage laws
Add to this volatile mix the legions of
arise periodically. In China, for example,
unidentified and seemingly ungovernable
theft of state secrets is a crime regard-
bloggers and citizen journalists, operat-
less of who does it, and the definition of
ing with gusto but without prior training
state secrets is an expansive one. But
or certification of any kind. There is no
even assuming that they do not break
question that they contribute a lively
the law, is it right for journalists to pub-
counterpoint to the mainstream media.
lish classified information, especially
But will their tendency to challenge con-
when it is claimed that doing so will alert
ventions and flout the rules lead to great-
terrorists to surveillance techniques and
er attempts to regulate the press?
undermine intelligence efforts to main-
These are not easy questions. Nor are
tain safety and security?
there easy answers.
It is not easy to live with a free press.
Transparency
D
Doing so means that one is being chal-
espite these concerns, the term
lenged, dismayed, disrupted, disturbed,
“transparency” has become a watch-
and outraged—every single day.
word in civil society. Both public and pri-
A free press is fallible and at times
vate institutions are exhorted to be more
fails to live up to its potential. But de-
forthcoming about their operations,
veloping democracies around the world
funding, and governance. The digitiza-
demonstrate every day that they have
tion of data and the ubiquity of the In-
the courage and confidence to choose
ternet can help. But universal access to
knowledge over ignorance and truth
information raises new issues about se-
over propaganda by embracing the ideal
curity and privacy, and it compounds the
of a free press.
difficulties of protecting proprietary or
It is not easy to live with a free press.
copyrighted information. Ironically,
But I know I couldn’t live without it.
some regard the technology that maxi-
mizes access to information as a threat
—Jane Kirtley
[ 5 ]
[ a G o o d e n v i r o n m e n t f o r F o s t e r i n g J o u r n a l i s t s ]
Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all
members of the human family is the foundation
of freedom, justice and peace in the world,…
univerSal Declaration of huMan rightS
United Nations
1948
[ 6 ]
[ M e d i a L a w | H a n d b o o k ]
A Good Env ironment for
Fostering Journalists
ational legal systems vary. Civil law nations like
Germany and France often adopt detailed and pre-
cise statutory schemes that govern the rights, du-
ties, and obligations of journalists. In common law nations
like the United Kingdom and the United States, a mix of stat-
utes, regulations, and case law establishes broad legal prin-
ciples that encompass press freedom, even if these laws do
not always directly address journalists.
Regardless of the particular legal ap-
and ideas through any media and
proach, good journalism flourishes where
regardless of frontiers.
society respects and enforces the rule of
law. The work of legal, theoretical, and
Article 29 then qualifies this right as:
philosophical thinkers, including Confu-
…determined by law solely for the
cius, Milton, Rousseau, Meiklejohn, and
purpose of securing due recognition
Mill, among others, supplies the intel-
and respect for the rights and free-
lectual underpinning for contemporary
dom of others and of meeting the
media law and media ethics.
just requirements of morality, public
order and the general welfare in a
International Standards
I
democratic society.
nternational standards supply guar-
Similarly, Article 10 of the European Con-
antees of free expression. But these
vention on Human Rights states:
standards also typically acknowledge
certain legitimate grounds for the state’s
Everyone has the right to freedom of
restriction of free expression. The Uni-
expression. This right shall include
versal Declaration of Human Rights,
freedom to hold opinions and to receive
proclaimed by the United Nations Gen-
and impart information and ideas
eral Assembly in 1948, pronounces in
without interference by public author-
Article 19 that:
ity and regardless of frontiers. This
Article shall not prevent States from
Everyone has the right to freedom
requiring the licensing of broadcast-
of opinion and expression; this right
ing, television or cinema enterprises.
includes freedom to hold opinions
without interference and to seek,
However, that absolute language is qual-
receive and impart information
ified further in this convention:
[ 7 ]
[ a G o o d e n v i r o n m e n t f o r F o s t e r i n g J o u r n a l i s t s ]
The exercise of these freedoms, since
right, but one that can be limited by duly
it carries with it duties and responsi-
enacted laws tailored to protect equally
bilities, may be subject to such for-
compelling societal interests.
malities, conditions, restrictions or
National Standards
penalties as are prescribed by law
and are necessary in a democratic
National constitutions also frequently
society, in the interests of national
guarantee press freedom. For exam-
security, territ