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Abstract

This research paper covers press freedom, which is a subset of freedom of expression more generally, and rationales for restricting or allowing press freedom in different forms of government. Debates about approaches to regulating certain kinds of controversial expression are discussed.

Introduction

Freedom of the press is the freedom from government interference accorded to journalism in a nation or other jurisdiction. This research paper focuses on commonly cited rationales for press freedom and approaches to press freedom in different press models. In order for public debate about any controversy, including bioethics, to ﬂourish, many regard freedom of the press as a prerequisite. Issues that are related to press freedom, but will not be addressed at length in this research paper , are scientiﬁc and academic freedom – the freedom to pursue scientiﬁc or other scholarly inquiry even in controversial areas, and to teach such content.

Freedom Of Press As A Subset Of Freedom Of Expression

Freedom of the press is a subset of freedom of expression, which is sometimes referred to as freedom of speech. The First Amendment to the US Constitution says that Congress, the lawmaking body or legislature of the United States, “shall make no law.. .abridging the freedom of speech, or of the press.” Courts have also limited the power of state and local governments to restrict freedom of speech and press. Though freedom of speech and press overlap, some have argued that the inclusion of both terms in the US Constitution reﬂects the view of the framers of the Constitution that press freedom is in some ways a distinct set of obligations.

Does the press have “special” rights beyond what the public has? Should the press have such special rights? Some have suggested that the press is entitled to a special right to low postal rates – rates for mailing of newspapers and magazines that are lower than standard rates. The United States is among the nations that have implemented such lower rates. Others have suggested that the press has special rights of access to newsworthy events, such as right of limited numbers of reporters to attend ofﬁcial events or press conferences, or to have reserved places at court proceedings. Allowing the press to have greater access to newsworthy events is justiﬁed because reporters can act as proxies for members of the public, who may be unable to attend. The press can cover events on behalf of those who are absent but have an interest in the proceedings, such as an interest in seeing that justice is served.

Freedom Of Expression Rationales

The next part of the article examines classic rationales for freedom of expression generally and how they are speciﬁcally applied to freedom of the press.

Truth-Seeking Rationale

The classic rationale for freedom of expression, often applied to press freedom, is referred to as the truth-seeking rationale, or the marketplace-of ideas rationale. John Milton (1608–1674), the English poet, expressed the view that suppressing ideas through censorship is unnecessary – and that it is wrong – because the best ideas will prevail. Milton wrote, “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the ﬁeld, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?” John Stuart Mill (1806–1873) developed this rationale further in the nineteenth century. Among the supplementary arguments he made against censorship of noxious ideas is that even if an idea is clearly erroneous or misguided, its circulation is still beneﬁcial, because listeners gain “the clearer perception and livelier impression of truth, produced by its collision with error.” In the twentieth century, US Supreme Court Justice Oliver Wendell Holmes initiated use of the marketplace-of-ideas metaphor: respect for ideas rises or falls depending on their worthiness, just as in economic markets prices rise and fall depending on economic value. Advocates of this view base their reasoning on basic principles of free market economics and argue that the marketplace of ideas functions best, like the economic marketplace, if it is a mostly free market, that is, a market free of government interference.

What are the implications of the truth-seeking rationale for press freedom? Advocates of press freedom argue that a consequence of the truth-seeking rationale is that prior restraints are presumed invalid. A prior restraint is an instance in which the authorities restrain speech prior to its circulation. The argument is simple: if the truth arises in open exchanges, then such exchanges must not be legally censored. Prior restraints include government licensing of the media – that is, requiring a permit before media publish – and requirements that authorities vet content prior to its publication, for example, through a censorship bureau.

Versions of the truth-seeking rationale, and the presumption that prior restraints are invalid, have inﬂuenced the development of English and American law through the centuries. The UK eliminated its laws regarding licensing of print in the late years of the seventeenth century. The United States never allowed licensing of print media. Licensing has however been allowed for broadcasting in the United States, the UK, and many other nations that rank high in freedom of the press. Among the rationales for allowing licensing of broadcast media is that, at the very least, government must act as the “trafﬁc police” in broadcasting: it must assign broadcast frequencies to broadcasters and ensure that they broadcast only on these frequencies. According to advocates of the truth-seeking rationale, the preferred alternatives to prior restraint involve more speech. The preferred response to speech one disagrees with is “counter speech” – expression that is a counterargument against that expression. If speech is deemed illegal and a remedy is required, punishment after publication is preferred to restraint prior to publication.

Market Failure Theory

The advocates of the truth-seeking (or marketplace of ideas) rationale believe that censorship is unwarranted because the best ideas prevail. But some have expressed skepticism about this conﬁdent conclusion including law professor Alexander Bickel (1924–1974), who observed that “we have lived through too much to believe” that truth prevails in the end. A related point is that even if the best ideas win in the long run, the win may come too late or at too great a cost – an argument for allowing government intervention.

Some express skepticism about the truth-seeking rationale by arguing that there is “market failure” in the marketplace of ideas, just as there is market failure in economic markets. In economic markets, market failure occurs when free markets fail to bring about efﬁcient outcomes. By analogy, market failure may be said to occur in speech markets when, in the free exchange of ideas, the best ideas – judged by criteria other that their popularity – fail to prevail. The market failure theorists observe that sometimes the marketplace of ideas gets distorted – for example, ideas are suppressed because of prejudice, rather than rational debate. Market failure can also occur when ideas gain prominence because of ﬁnancial backing rather than because they are inherently better. Thus, for example, some have concluded that for many years, the successful public relations and advertising efforts of tobacco companies distorted public debate about the effects of smoking tobacco by creating skepticism about the medical evidence for harm.

Some argue, drawing on the social responsibility model of the press, that even in nations with a high degree of media freedom, governments should intervene to ensure that mass media include under-represented viewpoints. This argument has been made mostly in the context of broadcasting. Traditional on-the-air radio and television broadcasting takes place on a limited electromagnetic spectrum; only a limited number of channels could be transmitted using technology of most of the twentieth century. In the later part of the twentieth century, there was vigorous debate among free press advocates about whether there should be a “right of access” to the press and broadcasting for a wide range of potential speakers. As a consequence of this scarcity of the electromagnetic spectrum, some nations adopted regulations to ensure that media broadcast content to serve the needs of diverse audiences, for example, content in certain languages. In the United States, from 1949 to 1987 there was a “fairness doctrine,” a set of regulations that required broadcasters to present balanced coverage of controversies of public importance. Related American laws survive at this writing that require free-to-air television and radio broadcasters to offer equal amounts of coverage to political candidates who request it. With the proliferation of the Internet – which, unlike broadcasting, gives practically unlimited bandwidth for discussion of ideas – the argument calling for access to mass media has lost some urgency.

An issue related to media access is media diversity and competition. In an extension of the truth-seeking rationale for protecting freedom of expression, some argue that the truth is more likely to emerge, and the best content is most likely to be produced, when there are multiple media outlets in which to discuss ideas. For traditional mass media, the barriers to entry have historically been high. Print media require investment in, or access to, a printing press.

Broadcast and cable media require access to sophisticated equipment and facilities and, for free-to-air broadcasters, a broadcast license. Since the late twentieth century, many have celebrated how online media have lowered barriers for reaching a mass audience. For traditional media, the barriers to entry may be as high as ever, and media ownership has become progressively more concentrated in corporate hands in recent decades. At the same time, proliferation of the Internet and social media have indeed reduced barriers to entry in public debate in some cases, though gaining a mass audience often requires a promotional budget and professional promotional efforts.

Democratic Self-Governance Rationales And Their Skeptics

Related to the truth-seeking rationale is the argument that free speech, including press freedom, is desirable in a democracy because the best ideas about how to govern will prevail. According to this argument, freedom of expression is desirable because in a democracy, the people rule, so the people need to express, receive, and debate the full range of options. Freedom of expression, including the free press, should provide a forum for sharing views about how best to guide a democratic nation, the argument goes.

A more speciﬁc variant of the democratic self-governance rationale emphasizes that with press freedom (and freedom of expression more generally), the press can act as a check on government and other powerful institutions; it is a watchdog that barks when there is trouble. A variation of the argument is that the press must act as a forum for citizens to have open, frank conversations about leaders, and how they govern – without fear of legal punishment from those same leaders for what they say.

As evidence for the thesis that free expression promotes better government than censorship, economist Amartya Sen (born 1933) has cited empirical evidence about the incidence of famine, that is, widespread hunger caused primarily by human actions (or inaction), rather than by, for example, a natural disaster. Sen observes that a famine has never occurred in a functioning democracy with a free press. The relationship between freedom and the absence of famine is not accidental, he argues. The free press and democratic institutions act as insurance against famine: Citizens use them to urge the authorities to intervene and promote the fair distribution of resources and prevent the descent into famine.

A free press that acts as a check on government is sometimes described as the “fourth estate,” a term that originated in eighteenth-century England, where the press covering Parliament came to be seen as another source of power besides the three other “estates” in Parliament: the Lords Spiritual (clergy), the Lords Temporal, and the Commons. Sometimes “fourth estate” is used to refer to the press as a fourth institution besides the branches of government. Nigeria conceives the role of the press as the fourth estate, where the other estates are the executive, legislative, and judicial arms of government. The Nigerian press has a constitutional responsibility to ensure government accountability to the people.

Some do not dispute the thesis that freedom of expression is needed in a democracy but have suggested that the press has relieved ordinary citizens of the watchdog or “checking” function. Legal scholar Vincent Blasi argues that the role of the press is to fulﬁll its watchdog role on the public’s behalf. The ideal, at least in America, he argues, is for the press to become specialists in the beats they cover, including government – so that citizens can pursue their own goals, individually or collectively, while the press assumes the watchdog role on their behalf, and only “barks” loudly when necessary.

Like the broader truth-seeking rationale from which this rationale is derived, advocates of the democratic self-governance rationale express conﬁdence that the best ideas will prevail – optimism that is not universally shared. Skepticism about the role of free speech and press in a democracy is expressed in many ways. Critics of the democratic self-governance rationale note that even when voters have well-reported information, they may not pay attention or choose rationally. They argue that those politicians who do not have the public interest as their main goal may prevail, through self-promotion, distracting the public, making empty promises, or a short-term focus. Others fear that press freedom will lead to a level of conﬂict and chaos that threatens societal stability or leaves a nation paralyzed in rancorous debate.

Freedom Of Expression As A Human Right

The arguments for freedom of expression covered thus far in earlier sections of this research paper have been consequentialist arguments, based on the potential consequences of allowing expression or censoring it. The argument that freedom of expression is a human right is a no consequentialist rationale – it does not refer primarily to the likely consequences of free expression but to inherent rights. In fact, some advocates of freedom of expression as a human right argue that it must be respected even if leading to negative consequences (at least in the short term). For example, some argue that though it may be expedient to stop disruptive expression, such as a protest, respect for the rights of those expressing themselves is a higher priority.

Advocates of freedom of expression as a human right argue that the right springs from the qualities that make humans unique. They argue, for example, that because individuals possess capacities to be rational (i.e., to base action on reasoning rather than only on instinct or emotion) and autonomous (i.e., able to make decisions for themselves), we have duties to respect our fellow humans’ exercise of those capacities. Thus, humans have rights to express and receive the full range of expression, and to make decisions about what to believe and how to respond. Censorship is wrong because of its paternalism; it does not treat individuals as having the rationality and autonomy to make their own decisions.

Asian Values Rationale

A counterargument to the thesis that freedoms of expression and of the press are human rights is the Asian values argument. Proponents generally do not reject a human right to expression entirely but argue instead that in at least some Asian societies, other widely held values take priority over individual rights. Advocates of the Asian values rationale argue that loyalty to groups and to trusted leaders take priority over individual rights. They argue that collective harmony is prized over individual rights, including expression rights. Leaders of Singapore and Malaysia have been among the advocates of this view.

Human Right To Freedom Of Expression Under International Law

Those who identify themselves as part of the school of jurisprudence known as “legal positivism” answer questions about whether there are rights in a nation, or in the world, by asking whether the law expressly says there are such rights. This is a contrast to those who argue for human rights on the basis of principles such as dignity. Putting arguments that freedom of expression is a human right aside, one can ask, is it in fact a right, according to international law? Is press freedom in fact a right under international law? The answer, in both cases, appears to be a qualiﬁed yes.

One relevant source of law is the 1948 United Nations’ Universal Declaration of Human Rights, which all members of the United Nations are presumed to endorse by becoming members. The Declaration says, in sweeping language, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” However, it must be noted that the Declaration is just that – it is a statement of principles that is not legally binding.

A binding source of international law on freedom of expression is the United Nations’ International Covenant on Civil and Political Rights, a treaty that the United Nations General Assembly adopted in 1966, and which many of the UN member nations have signed and formally ratiﬁed, though not all – for example, Singapore has neither signed nor ratiﬁed it. The effect of ratiﬁcation is that these nations are bound by law to honor the principles. How the covenant is implemented varies among the many nations that are party to it. Some have implemented the covenant through national legislation to enforce its provisions; others have not, making the status of the legal guarantees more tenuous. Depending on how the treaty is implemented, citizens of some states that ratiﬁed the covenant can complain to their courts that their rights are violated.

Perhaps not surprisingly, compared to the words of Article 19 of the Declaration, the legally binding principles in Article 19 of the Covenant are more limited in scope:

Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Paragraph 3 serves to restrict to the scope of the treaty’s guarantees of rights.

Press Freedom In Different Models Of The Press, And The Role Of Media Ethics

During the Cold War, three American communication scholars, Fredrick Siebert and his colleagues, developed a typology to explain the different models of the press, which differ mainly in their degree of press freedom. In the decades since Siebert’s ﬁrst classiﬁcation, other scholars have revised the categories.

Libertarian Model

Freedom of the press is a cherished ideal for those who champion the libertarian model of the press, in which the press is legally free from interference from the government and is constrained mostly by the economic pressures of the free market – by whether the press attracts audiences or advertisers.

Social Responsibility Model

A free press can be a socially responsible press. In the typical formulations of the social responsibility model of the press, the press is free from government interference but has ethical obligations to perform in ways that beneﬁt the public interest. In some versions of the social responsibility model, the government may interfere with the press, but only to beneﬁt certain goals that serve the public interest – for example, to ensure that free-to-air broadcasters air programming in a minority language, or address diverse controversies of the communities they serve.

The debate about press freedom focuses less on whether media should act responsibly than on when responsibility should be legally enforced: whether the government should regulate, whether an institution like a press council should intervene, or whether publication should be left to the journalists to decide (perhaps with input from the community). Many advocates of a free press also advocate that the press act ethically, and refrain from publishing content in some instances even if there are no legal restrictions preventing them from reporting. This is not a contradiction. A free press may allow publication of content the society condemns; press freedom should not be mistaken for societal endorsement of the most offensive content that is legally published. Common ethical obligations in many societies include truth telling, promise keeping, and not causing harm to others. When these obligations are in conﬂict – for example, when reporting the truth could be harmful due to an invasion of privacy, or involve a broken promise of conﬁdentiality to a source – citizens, journalists, and ethicists may differ about whether it is appropriate to publish. Some societies resolve at least some of these questions through the legal system. In others, these decisions are left for journalists to decide.

Authoritarian model: In the authoritarian model, a nondemocratic government controls the press to achieve its goals, typically including the preservation of its power. Press freedom is absent, and media content is propaganda.

Soviet Communist Model

In the communist model of the press, the press is not free, but its function is to facilitate the communist revolution. According to communist theory, as economic systems change from capitalism to socialism and then to communism, ideologies (i.e., prevailing systems of thought) change in tandem. However, resistance is expected. One stage in the transition to communism is dictatorship by a ruler who represents the working class and conﬁscates private property as a step toward collective ownership of property in the society. Private property owners may resist the government conﬁscation of their property; thus, for example, the role of the communist press may be to support collectivization of property ownership. In communist theory, the communist revolution is conceived as serving the public interest, particularly those who were not the major owners of private property and must sell their labor. In practice, communist revolutions have been widely regarded as failures, and many communist dictators have abused their powers. However, the press’s role in the revolution, which some may dismiss as propagandist, was originally conceived as for the ultimate beneﬁt of the society.

Development Model

The development model was not in Siebert’s initial typology but was added later by others. In the development model of the press, the press is not fully free. Rather than serving as a “watchdog” on the government, the press’s role is as a partner to government in fulﬁlling the goals of a developing nation. This is seen as a preferable role to being a critic of an emerging government. In its early stages, a nation must cope with issues of survival, advocates of this model claim, and issues of freedom are thus a luxury that such a nation cannot afford, at least until later in its development. The development model is often cast as a transitional model to be outgrown as the nation develops; presumably, it is a step in a transition to a libertarian press, or a press that adopts the social responsibility model. Singapore’s press has sometimes been described as a development press.

Press Freedom And Press Models Today

Major reports on press freedom are compiled by two nonproﬁt, nongovernmental organizations: Reporters Without Borders, which has a system for quantifying and ranking press freedom, and Freedom House, which has a classiﬁcation system in which a nation’s press is judged “not free,” “partially free,” or “free.” Such press rankings are sometimes criticized for subjectivity, as they are generated from evaluations of multiple observers. Other nongovernmental organizations that advocate human rights also pay special attention to press freedom, such as Amnesty International. The Central Intelligence Agency of the United States also publishes evaluations of press freedom worldwide.

As an empirical matter, the state of press freedom that is guaranteed by law is enormously varied, with the Scandinavian countries at the extreme in offering robust protection for freedom of the press under a model that might be described as a libertarian or social responsibility model. The United States and UK are typically in the upper band of the rankings but often are criticized because ownership of mass media is increasingly concentrated in the hands of corporate owners; thus, even if content is not legally restricted, it may nonetheless reﬂect the status quo in which the corporate owners thrive. Nations with variations on a communist model rank low. China, a major world power, has been generally near the bottom of rankings for press freedom, with mostly state controlled newspapers and broadcasting. Chinese authorities also exercise tight control over online media, through legions of employees and technical measures. Perennially near the bottom of rankings of press freedom is North Korea, a dictatorship with a cult of personality cultivated through its entirely state-controlled media.

Restrictions On Freedom Of Speech And Press

Probably few would disagree that in extreme cases, legal prohibitions on publication are justiﬁed. For example, prohibition on publication of the details of military strategy for defending a nation against attack, such as planned troop movements, would probably generate little controversy in most societies. The prerogative of government to protect some secrets is generally recognized, although enormous controversy exists about the extent of secrecy that should be legally allowed to protect national security when an imminent threat to safety is not involved. Also controversial are restrictions on potentially offensive expression, which are discussed next. Societies differ on whether press freedom embraces a right to offend and a right of audiences not to be offended.

Approaches To Regulating Indecency

Among the most common restrictions on freedom of speech or of the press worldwide are restrictions related to content that is deemed indecent or vulgar, particularly sexual content. English jurist James Fitzjames Stephen (1829–1894) was among the advocates of the view that a common morality holds a society together, and freedom of expression must be restricted in order to restrict content that violates that common morality. This argument has been used to justify restrictions on content for adults and children alike.

Some argue that individual rights take priority over community morality. American legal scholar Martin Redish has been among the legal scholars who have advocated a “self-realization” rationale for protecting freedom of expression, arguing that individual self-development takes priority over community morality. Building on the argument that freedom of expression is needed to promote democratic self-governance, Redish argues that just as individuals in a democracy need a free ﬂow of information and opinion in order to help them make decisions such as who to vote for or what policy to support, they also need a free ﬂow of information to make personal decisions, including on intimate matters. Such arguments have been extended to suggest that explicit content should be available with few restrictions, at least for adults.

Approaches To Hate Speech

Advocates of censoring hate speech argue that such expression – targeting others on identities including race, ethnicity, religion, gender, or sexuality – is so potentially harmful to individuals and to the fabric of society that it must be prohibited to maintain the stability of the society. Advocates may not reject the basic premise of the truth-seeking rationale that rational debate leads to optimal outcomes, but they emphasize that hate speech does not contribute to rational dialogue. Instead, it is mere expression of emotion, and it may cause its targets to retreat, fall silent, or retaliate with violence, rather than responding rationally.

In the US law governing free expression, there is some expression, known as “ﬁghting words,” that is so emotionally charged that it is deemed likely to cause the audience to react with physical violence, and government can regulate such expression without violating First Amendment protections for free speech. American law has limited such exceptions to the First Amendment to expression that the speaker intends to incite lawless action (i.e., breaking the law, usually through violence) when that lawless action is both imminent and probable to occur.

Legal scholar Lee Bollinger has been among those who have argued that the best way to advance the goal of building a stronger society is to allow objectionable expression, even hate speech. He argues that individuals and communities both become stronger when they learn to tolerate, confront, or ignore such expression, rather than censoring it. They develop “thicker skin” – they are not so easily offended, or at least, not so quick to react by retaliating. And community bonds may grow stronger as the community confronts threats to its unity.

Conclusion

Debate about press freedom focuses on controversial expression, such as criticism of government and potentially offensive expression. Its advocates say press freedom is necessary for the pursuit of truth and for democracy to function and that it is a human right. Its critics counter that the noble goals of press freedom are rarely realized, or only realized at too great a cost, and some claim that views of press freedom as a human right are not universally shared.

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