Media Ethics:Freedom of the Press

T2 – 2009

Dan Turton

Dan Turton

• Office: MY715

• Office Hour: Thurs 2:10-3:00pm• Email: dan.turton@vuw.ac.nz

• Phone: 04 463 5233 x 8651

Freedom of the Press 1

John Stuart Mill

Of the Liberty of Thought and Discussion

The Harm Principle

Mill’s Very Simple Principle: the only purpose for which power can be rightfully exercised over members of a civilized community, against their will, is to prevent harm to others. [Mill, On Liberty]

What is Harm?

Mill is not clear on this, but in general:

An action is harmful if it involves a setback in some persons interests

E.g. Chopping of their leg

E.g. Stealing their laptop

Two Kinds of Freedoms

1. Freedom of action- Hardly anyone believes that citizens should be allowed unrestricted freedom of action

2. Freedom of thought and expression- But should we be restricted in what we can think or say?- Mill thinks its more harmful to censor expression (even seemingly harmful ones!) because of the importance of truth- “It is the duty of governments, and of individuals, to form the truest opinions they can”

How the Argument Works

The Harm Principle

(Unrestricted) Freedom of Expression

Free Press

The Orthodox Opinion

Mill: The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt government.

We cannot be democratically free without a free press because we need government-independent information to be able to properly evaluate the current government and make free voting/protesting/information-seeking decisions

Some Other Opinions

We need an impartial press to provide us facts (and only facts) about how we are governed in order to exercise our democratic rights

But, we can’t because:

There is a liberal bias in the media!

There is a conservative bias in the media!

Mill’s More Radical Opinion

Even a government acting entirely at the bequest of its people should not have the power to censor opinions

“The power to limit expression is itself illegitimate. The best government has no more title to it than the worst.”

Mill’s Defence of Unrestricted Freedom of Expression

• No one has the right to censor a dissenting opinion, no matter how small

• If the opinion is right, “they are deprived of the opportunity of exchanging error for truth”

• If wrong, they lose “the clearer perception and livelier impression of truth, produced by its collision with error”

• We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still

Mill’s Basic Argument

1. Every dissenting opinion either could be true or could not be true.

2. If it could be true, then the dissenting opinion should not be censored.

3. If it couldn’t be true, then the dissenting opinion should not be censored.

C. Therefore, no dissenting opinion should be censored.

(P2) If the dissenting opinion could be true, then it should not be censored

Mill believes this is the most important premise in the argument, because he thinks every dissenting opinion might for all we know be true. Why does he think that? Answer: because our beliefs are fallible.

“To refuse a hearing to an opinion, because they are sure it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility … “while everyone well knows himself to be fallible, few think it necessary to take precautions against their own fallibility, or admit the supposition that any opinion, of which they feel very certain, may be one of the examples of the error to which they acknowledge themselves to be liable”

Overconfidence

In each of the following pairs, which city has more inhabitants:1. Las Vegas, Miami2. Sydney, Melbourne3. Bonn, Heidelberg

In each of the following pairs, which historical event happened first:1. Signing of the Magna Carta, Birth of Mohammed2. Death of Napoleon, Louisiana Purchase3. Lincoln’s Assassination, Birth of Queen Victoria

After each answer, subjects were also asked: How confident are you that your answer is correct?

50% 60% 70% 80% 90% 100%

(P2) If the dissenting opinion could be true, then it should not be censored

If we silence an opinion, for all we know, we are silencing truth.When we make mistakes and errors in judgement, the only way we can remedy the mistake is by hearing and considering alternative hypotheses.Our beliefs are justified and rational to the extent that they are supported by the total available evidence.

(P3) If the dissenting opinion couldn’t be true, then it should not be censored

True opinions tend to become prejudices unless forced to be defended.

Unless true opinions are contested from time to time, they lose their vitality. 

True opinions can become mere meaningless utterances unless they are contrasted to alternatives.

True opinions aren’t always wholly true. Dissenting opinions can help us get at the whole truth.

A Problem for Mill?When Publishing Opinions Clearly Causes Harm

• 1994 Rwandan genocide (~800,000 casualties) partially incited and directed by the newspaper Kangura and radio station Mille Collines

Summary of Mill

• Any opinion could be true• We shouldn’t censor any opinion

because any opinion could help lead to the truth

• Even if they’re false (which we can’t be sure of), they can still help us appreciate the truth

• So, freedom of expression should be upheld

• That includes freedom of the press

Freedom of the Press 2

Joel Feinberg

Offensive Nuisances & Limits to the Free Expression of Opinion

The Harm Principle

Mill’s Very Simple Principle: the only purpose for which power can be rightfully exercised over members of a civilized community, against their will, is to prevent harm to others. [Mill, On Liberty]

Mill’s View

The Harm Principle

(Unrestricted) Freedom of Expression

Free Press

Mill’s Basic Argument

1. Every dissenting opinion either could be true or could not be true.

2. If it could be true, then the dissenting opinion should not be censored.

3. If it couldn’t be true, then the dissenting opinion should not be censored.

C. Therefore, no dissenting opinion should be censored.

The Orthodox Liberal View

The Harm Principle

Restricted Freedom of Expression

Free Press

The Orthodox Liberal ViewSome Limitations on Free Expression:

DefamationNewsflash: Dan Turton secretly hates philosophy

Causing PanicImagine the room is more crowded…

Invasion of Privacy!Your beachfront frolicking front-page news?

Incitement to Crime1994 Rwandan genocide

What is Harm?

Mill is not clear on this, but in general:

An action is harmful if it involves a setback in some persons interests

E.g. Chopping of their leg

E.g. Stealing their laptop

The Harm Principle: A Recent Test Case“The modern, secular society is rejected by some Muslims. They demand a special position, insisting on special consideration of their own religious feelings. It is incompatible with contemporary democracy and freedom of speech, where you must be ready to put up with insults, mockery and ridicule. It is certainly not always attractive and nice to look at, and it does not mean that religious feelings should be made fun of at any price, but that is of minor importance in the present context ... we are on our way to a slippery slope where no-one can tell how the self-censorship will end. That is why Morgenavisen Jyllands-Posten has invited members of the Danish editorial cartoonists union to draw Muhammad as they see him.” [Flemming Rose, Jyllands-Posten, September 30, 2005 (emphasis added)]

“In our opinion, the 12 drawings were sober. They were not intended to be offensive, nor were they at variance with Danish law, but they have indisputably offended many Muslims for which we apologize.” [Open Letter, Jyllands-Posten, 30 January 2006]

The Harm Principle: A Recent Test Case

Feinberg’s Offense Principle“It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing [wrongful] offense (as opposed to injury or harm) to persons other than the actor.”

An action is wrongfully offensive if it willfully or recklessly causes unpleasant experiences (but not harm) in others without a good reason for doing so

Unpleasant experiences such as: anger, disgust, shock, shame, embarrassment, annoyance, fear, humiliation, and affronts to one’s senses and sensibilities

Wrongful Offense or Offense?

• When you feel queasy because you happen to see an accident victim while at the hospital, then the victim has not wronged you – your offense was not caused wrongfully

• When a colleague sends you a surprise picture of an accident victim via email and it makes you queasy, then they have wrongfully caused you offense

Dealing with OffenseWrongful offense should be dealt with by law, but not criminal law if civil law or regional legislation can better deal with it (because offense is not as serious a problem as harm)

E.g. cease and desist orders with threats of fines

Extreme or prolonged wrongfully offensive will probably be harmful

At the point it becomes harmful, then the harm principle should deal with it

Balancing Freedom & OffenseCurtailing someone’s freedom requires a good reason

Causing offense by itself is not necessarily a good enough reason

The damage to the offender that prosecution would cause needs to be outweighed by the damage to other members of society through their unpleasant feelings caused by the offense

Other considerations should also be consideredIncluding the accessibility of alternate options open to the offender, the motives of the offender, and the location of the offending

How Offensive is too Offensive?Are there any experiences that, while harmless, are so unpleasant that we can rightly demand legal protection from them at the cost of other persons’ liberties”?

Taxi drivers are on strike. You are on a crowded bus for 30mins to the airport. If you get off you will miss your connecting flight to your dream holiday

A RIDE ON THE BUS

Affronts to the Senses

Story 1. A passenger who obviously hasn’t bathed in more than a month sits down next to you. He reeks of a barely tolerable stench. There is hardly room to stand elsewhere on the bus and all other seats are occupied.

Feinberg is Offended!Feinberg: offenses in any of these six categories could be extreme enough to warrant prosecution

Therefore, some non-harmful actions/expressions do cause sufficient offense for the state to have reason to restrict their use even though that impinges on the liberties of people

I.e. we need the Offense Principle as well as Mill’s Harm Principle to properly restrict freedom of action/expression

Limits to the Free Expression of Opinion

The Harm and Offense Principles should limit freedom of expression in the following cases:

1. Defamation and “Malicious Truth”

2. Invasions of privacy

3. Causing panic

4. Provoking retaliatory violence

5. Incitement to crime or insurrection

But not in cases of sedition (where it is not going to lead to the exceptions above)

Creating Feinberg’s View

The Harm Principle and the Offense Principle

Restricted Freedom of Expression

Free Press

The Press & PrivacyThe press can publish anything of legitimate public interest (based on harm principle and above restrictions) even if it invades someone’s privacy

The person’s right to privacy is balanced against the public’s ‘right to know’

People who have put themselves in the public eye have legally forfeited much of their privacy

Reluctant public characters

can become news and lose

much of their right to

privacy involuntarily!

Willie Apiata VCReluctant hero, Willie Apiata VC, became public property (to some extent) whether he liked it or not

He became news, the public became interested, and journalists tracked him down because the public have a ‘right to know’ about legitimate matters of public interest

Still it is a balancing act

And, “photographs and descriptions with no plausible appeal except to the morbid and sensational can have very little weight in the scales”

So, balancing his privacy and the public’s ‘right to know’ probably means that photos of him at the beach should not be published but his heroic actions should be – even if he doesn’t want them to

But his recent book means that he has given up his right to privacy at the beach

Summary of Feinberg on the Freedom of the Press

Actions and expressions should be restricted by the harm principle and the offense principle

The press should be allowed to publish anything of legitimate public interest that does not cause a greater balance of harm or offense

It should be very rare for a published opinion to be restricted (or punished) because of the large furthering of public interests from publishing compared to the small harm or offense caused a to much smaller group

Freedom of the Press 3

Phillip MontagueGovernment, the Press, and the People’s

Right to Know

Mill’s View

The Harm Principle

(Unrestricted) Freedom of Expression

Free Press

The Orthodox Liberal View

The Harm Principle

Restricted Freedom of Expression

Free Press

Creating Feinberg’s View

The Harm Principle and the Offense Principle

Restricted Freedom of Expression

Free Press

Montague’s Main Points• Montague’s Negative Claim:

– The moral justification for a free press is not to be founded on a general freedom of expression.

• Montague’s Positive Claim – His view:– The moral justification for a free

press is to be founded on a ‘right to know’.

Montague’s Negative Claim• The moral justification for a free press is

not to be founded on a general freedom of expression

• It could be the case that freedom of expression was limited in some way for ordinary citizens, but not for the press or some other special group (academics)

• The moral justification for a free press should be based on the role that we expect the press to play in our society

Montague’s ViewThe Right to Determine the Course of Our Own Life

The Right to Know the Relevant Information to do this

Right to Seek & be Given Info. about How We are Governed

Government Obligationto Disclose Such

Information

Govt. Obligation to Set UpIndependent Mechanisms of Disclosure

Free Press: Freedom of Journalists toPublish Such Information UncensoredOfficial Information Act

General Claim Rights• General rights are rights held against

the world at large• Claim rights create corresponding

obligations from others– E.g. the right to education creates the

obligation to provide education

• General claim rights create obligations on everyone else to do or not do certain things

General Claim Right to Property

• Everyone else has the obligation not to interfere with your property or make decisions about it (even if they don’t affect you)

• E.g. The lazy Neighbour

General Claim Right to Privacy

• Everyone else has the obligation not to interfere with your privacy or make decisions about it (even if they don’t affect you)

• E.g. The pervy Neighbour

Active vs. Passive Rights• An active right to something is the right

to try to obtain that thing for yourself

• A passive right to something is the right to have that thing provided for you– E.g. kids in NZ have a passive right to

education

The Right to Know• Needs an area of discretion

– Can’t have a passive or active right to know everything!

• So, “people have a right to be provided with information relevant to making certain decisions about their well-being”

Justification for a Free Press• The freedom of the press to print opinions

about relevant matters is mainly justified by the idea that a free press is likely to encourage government disclosure of relevant information

• Relevant info is any info that helps citizens to determine the course of their own lives, pursue their own well-being– E.g. political info – Does John Key really

believe in climate change?– E.g. health info – Are cigarettes really good for

me?

An Objection to MontagueIf Montague’s justification were the only one available, then justified legal rights to freedom of the press would be too limited in scope. It would extend only to the publication of material about the workings of Government.

Montague’s Response

These foundations can justify a broader freedom of the press on grounds like the following:

Montague’s Response Cont.1. People can have rights to information that is non-political

in nature but which government officials might be disinclined to divulge.

E.g. Effects of education legislation on student well-being

2. There might be information possessed by public officials with which citizens have rights to be provided, and which the officials are quite willing to divulge, but which the press is better able to disseminate.

E.g. Tsunami warnings

3. There are grey areas where whether people have rights to be provided with information is extremely difficult to discern with any confidence, and in which the press might justifiably be given the benefit of the doubt.

E.g. Clinton’s sex life?

Summary of Montague• We have a passive and active

general claim right to know (seek and be given) information that is important for determining the course of our lives

• Political information is important for this• A free press makes it much more likely that we

can obtain this information• Therefore, our right to know (about certain

things) justifies a free press

Presuppositions Common to all Models• When the press is totally free, the public is more

likely to obtain true info about any domain• The public has a right to know at least some things1. Mill: the public always has a right to true info2. Orthodox Liberals: the public has a right to true

information (except when that causes greater harm)3. Feinberg: the public has a right to true information

(except when that causes greater harm or extreme wrongful offense)

4. Montague: the public has a right to true information (but only if it helps us determine the course of our own lives)

Chomsky’s Challenge• A free press still seems to fail to provide us with

the whole truth• The five filters on truth:1. Size, ownership, and profit orientation,2. Advertising,3. Sourcing,4. Flak,5. Anti-communism (and its ideological

counterparts).Watch Manufacturing Consent for free:http://video.google.com/videoplay?docid=-5631882395226827730