Freedom of Expression and Journalism: How to determine limits?
Quebec has become sensitive to issues of media and freedom of expression, both as a result of the debate concerning Choi FM and as a result of the juvenile prostitution scandal where reputations were destroyed in advance of any trial and when certain media personalities whipped up public opinion into a frenzy of anger and intolerance. Two basic freedoms seemed to collide. On the one hand, the media must discuss controversial issues and are not limited to facts but may and should express opinions and analyze the events as they occur. On the other hand, all freedoms have limits, and just as state secrets may not be published on the front page of a newspaper, the destruction of personalities through hysteria is not one of the proper goals of journalism. The right balance depends on numerous factors.
Our society exhibits a strange paradox. If any freedom is universally accepted, it is the freedom of expression. No one admires Hitler, Stalin, the Inquisition or Senator McCarthy. Yet freedom of expression is constantly under litigation despite its theoretical acceptance by everyone. It is, in fact, one of the weakest guarantees in the Charter.
Canadian society is extremely conformist and legal prohibition of
speech, although it exists, is only the tip of the iceberg. People
fear losing their jobs, limiting their upward mobility, offending
their neighbors. Political correctness is one of the banes of Canadian
life, and it strikes particularly at those who normally would have
things to say - academics, professionals and politicians. It
turns out that, in practice, many topics, in particular official languages,
ethnicity, the Middle East, gender issues, sexuality and the questioning
of electoral democracy as a system are high risk undertakings, where
those who embark face possibly serious consequences.
This is still a salutary principle. If there were to be limits on any freedom, including expression, they should not take the form of a censorship, official or informal, imposed in advance, but should be administered through civil and (rarely) penal proceedings afterwards.
The second principle which should be advocated is great skepticism with respect to lobbies and lobby-driven limits on expression. Various lobbies - ethnic, religious, gender and economic have become very powerful in Canada and each of them has a pet peeve which it would want to repress. Ethnic and religious lobbies tend to oppose any attacks on their basic customs and principles, the business lobby has problems with secondary picketing, the various gender lobbies dislike any unwelcome comments or even jokes and so on. The lobbies have performed an invaluable service in the protection and integration in society of their members and it would be grotesquely unfair to present them as systematic enemies of liberty. However, in the rather special field of freedom of expression, we should be wary of partisan interests and discount immediately the position of any powerful lobby. Indeed, the stronger the lobby, the more caution is required.
A particular danger arises from former Primer Minister Joe Clarkâ€™s description of Canada as a community of communities. Not only is this incorrect, but it has the effect of diluting the real duality of Canada - English and French. Moreover, it sacramentalizes the role of groups, which makes it difficult for citizens to change their identity or disassociate themselves. Indeed, it is now difficult to attack the concept of multiculturalism. Yet the role of freedom of expression is not only to allow presently living citizens to express themselves without fear but also to permit “unthinkable” ideas to be verbalized as a basis for future change.
In the end, the danger of deference to powerful lobbies is that the more influential they are, the more likely they are to favor the status quo and to fear change except the narrow change which they advocate.
In every society, the powerful and the wealthy have more influence, more power and more incentive to repress others. It is an illusion to think that Canadian political correctness favors the weaker members of society. Rather than think that, we should ask ourselves who is really powerful in the society without any pre-conceived notions. It is possible that some of the formerly “oppressed” lobbies have now jointed the ranks of the privileged. Those who claim the title of victims are not necessarily correct in their perceptions. In any event, on the whole, freedom of expression tends to protect the weak and the unpopular and this is an important element to remember in setting down its boundaries.
The third principle, is, whenever possible, to leave the protection of reputation to civil justice rather than the penal or administrative tribunals. Some will argue that civil justice is too expensive for many and their argument has merit, but it should be palliated by measures to make civil justice accessible, not by resort to penal or disciplinary measures.
The problem with penal and disciplinary measures is that they often have an excessive effect on the accused who emerges financially ruined with his career in tatters, while they provide nothing for victims other than give them an often unhealthy sense of satisfaction. In the middle ages, victims played an important role in our criminal law. They were gradually marginalized as it became clear that victim-driven penal justice was both very unreliable and unjust. The return of the victim is a disturbing development of recent years. For instance, the victim impact statement means that the penalty suffered by a wrong-doer depends once again on how forgiving his victim is.
Penal and disciplinary proceedings are also undesirable because our society is so unwilling to forgive anything of that kind, no matter how many years have passed and a record haunts a person for the rest of his life. This could perhaps be remedied legislatively but, at present, it should be a major consideration favoring civil remedies.
The fourth principle to be adopted is that of minimal limitation. In penal, disciplinary and civil proceedings, the presumption should be freedom of expression; restriction must remain exceptional. Even if some restraints are self-evident, for instance in the field of national security, they all lend themselves to abuse. The use of a national security certificate against Ernst Zundel, a tasteless, hateful, holocaust-denier, but clearly not a security threat should alert us to the dangers of all restrictions, especially the best-intentioned ones.
The application of these principles to the media would surely mean restricting and disciplining only the most exceptional matters, leaving the rest for civil litigation where, however, freedom of expression should also be the general rule and damages the exception.
This may appear unsatisfying to those who have been damaged and hurt by unscrupulous attacks. A number of measures can be suggested.
One is to make civil justice more accessible financially. This is surely one of the most pressing questions in many areas of law, because democracy in which only the wealthy or the powerful lobbies can have access to justice tends to be a sham.
The demand for historical apologies is particularly ludicrous. Every generation re-interprets history and the idea that descendants of one group should be apologizing to another on the basis of current historical views is anachronistic, anti-intellectual and, in the end morally reprehensible. By requiring apologies, we give effect to a type of collective responsibility based on the assumption that our generation has found the absolute truths that eluded our forefathers. The relativity of our epochâ€™s interpretation of history should be a subject of discussion much more than a calculation of past grievances.
Our inability to see historical evolution has been at the root of our willingness to discipline professionals and academics for sexual advances made in the 1960s and 1970s when the standards used were different. It also allows us to repress all speech advocating the overthrow of any government (e.g. by denying refugee status) while continuing to idolize the likes of Jefferson, Garibaldi and Kosciusko and closing our eyes to the contradictions. It cannot be assumed that the type of liberal democracy we favour is the end of history and we should be careful not to interpret past events as a prologue to our “perfect” present.
The notion of history and morality bring us to the final prescriptive element in our struggle to protect freedom, while reducing the abuses it permits, namely education.
Education of journalists can certainly have a salutary effect in
training professionals to know the difference between guilt and suspicion
of guilt. However, the education of all citizens can help in raising
the standard of understanding of history and of justice. Most importantly,
a good education will teach the value of dissent and unconventionality
and even of disobedience of rules. This will lead to far greater tolerance
of unconventional views and will bring about the decline of yellow
journalism not through prohibition and discipline, but through loss
of its audience.
The media and the notion of public interest
My comments focus on particular media activities: News and public affairs rather than fiction, print and radio rather than television, the public sector more than the private one... I donâ€™t condemn the rest, I just limit my observations.
I confess to being less than serene when I look at the mediaâ€™s current view of public interest. The rise of neo-liberalism has so dulled public interest that a fear develops: Are the media henceforth exempted from any civic concern? Iâ€™m further alarmed that public radio and television are just as permeable to neo-liberal influence and that journalists do not always clearly see the difference between corporative interests and social needs.
1. An uneven balance sheet
To parody Shakespeare, not everything is rotten in the media kingdom. Those who knew the media and journalism prior to the Quiet Revolution can testify to their progress. The widespread venality of journalists was only too real. Unionisation has improved wages and, luckily, purified the mores.
The Quiet Revolution also sounded the knell of censorship and self-censorship. We can no longer imagine Lady Chatterleyâ€™s Lover splitting the Supreme Court, Les Fées ont soif mobilising public opinion, La Belle de céans shocking part of Radio-Canadaâ€™s audience, or the vice squad agonising over I, A Woman, The African Ballet or Playboy.
The reverse of the balance sheet is more questionable, and less glorious.
In his survey of Quebec journalism, Jean de Bonville shows that commercial
logic has supplanted political allegiance. Vanished are papers conspicuously
linked to a party, like Montréal-Matin. General-interest newspapers
solely concerned with increasing their readership are prosperous.
What is sought is a common denominator between audiences rather than
devotion to a restricted public.
We have also witnessed a changing of the guard in daily newspapers: Managers have succeeded great press bosses. Power is no longer held by a Jean-Louis Gagnon, a Gérard Filion, a Gérard Pelletier or a Claude Ryan, but by an individual more familiar with finance than political or social analysis. Some say such a change is tantamount to preventive censorship; I will not contradict them.
New technologies have changed working relations and the balance of power between management and the unions. In labour disputes, picket lines donâ€™t mean much. We have seen strikes that didnâ€™t even managed to interrupt publication at some dailies. When Radio-Canada journalists walk out or are locked out, MPs ask few questions. If public interest is still present in the minds, the least we can say is that it expresses itself discreetly.
The notion of press concentration has evolved. There was a time when nobody turned a hair if a single person owned all of a regionâ€™s media, and then some. Think of Jules Brillant in Rimouski, Paul Desruisseaux in Sherbrooke, and Jean Gourd in the Northwest. Then, this type of concentration was replaced by another. Radio-Mutuel, Télémédia, Gesca, Hollinger... could control a series of the same “species” of media. Today a cable distributor owning a TV network and also offering the other networks no longer constitutes unfair competition. Neither is he denied the “synergy” that uses a daily to advertise its television sisterâ€™s programming. Concentration? No. Synergy. And total resignation to neo-liberalism. Governments claim to be powerless. But there was a time when the federal government frowned upon Canadian companies entering as operating expenses their advertising in Readerâ€™s Digest or Time Magazine. Just as there was a time when second-class mail rates lent discreet support to the distribution of print media.
As for language or culture, the gap is widening between the days when Radio-Canada featured teleplays, concerts, Radio-Collège, Pays et merveilles... and now. The CBC claims ratings do not dictate programming, but itâ€™s harder and harder to believe. Radio is looking for a vocation. Literature is no longer explored and classical music is looking in vain for a niche. Radio-Canada nonetheless continues to claim every morning, early enough to ensure nobody hears, to broadcast according to the terms and conditions of its CRTC license. Radio excels in doing indirectly what it is prohibited from doing indirectly. Since it is not allowed to air commercials, it multiplies the invitations to watch television... where advertising is permitted.
Journalistsâ€™ interventions in the public debate waver between corporatist concern and genuine social preoccupation. They object to concentration, but one wonders whether they worry about the potential loss of jobs or the declining diversity of the press.
2. A nerve sector
Leaving neo-liberalism to its own devices in the media is a matter for concern. We should no longer be talking of cultural exception, but of the vital space needed by democracy, culture, social health.
Why isolate this sector? Because of its specific nature. The media, it bears repeating, have a double nature: They are at once profit-making undertakings and the dispensers of information and analysis, both free to make money and guarantors of democracy. No democracy without informed citizens. No democracy without a free, diversified, reliable press. No identity if citizens are not informed of the economic pressures favouring homogenisation. No clear-headed, solidary society without a varied intellectual and cultural life. On each of those fronts, the press has heavy, clear responsibilities since public interest is at issue.
If we admit that democracy requires such a press, such information and such cultural life, we should focus on how to achieve them. Can we blindly trust the free market to create, develop and maintain the freedom, diversity, and reliability of information, and be sensitive to culture? In other words: Does the current attitude of the press inspire trust or concern? If we believe all is well, letâ€™s leave things as they are and congratulate the media for their devotion to the common good. If caution should be exercised, some harmonisation has to occur. Reconciling media rights with the need to defend public interest. Reconciling the freedom of news undertakings with societyâ€™s right to be informed.
The private sector media, with few exceptions, are profit-making undertakings. The corollaries are readily observable: Property mergers, real or apprehended economies of scale, merger of editorial rooms, synergy cult, resort to a handful of press agencies, insecure employment... It is commercial logic that the media, like other profit-making organisations, obey. As long as there is no conflict between this logic and the basic needs of a democratic society, drama is avoided. But if competition becomes too fierce or, conversely, non-existent, if the market attracts too many participants, if the profit margin begins to melt, if it can be increased through mergers and synergies, the industry is quick to claim leeway.
Without regulation, ads butcher creation, quotas designed to ensure Canadian content are ignored, advertising brings pressure directly or through audience ratings, etc. In a dual between neo-liberalism and the publicâ€™s right to diversified, reliable, sound information, one would have to be naïve to bet on public interest. To hesitate about the most appropriate means to preserve some balance stands to reason, but to fail to support the publicâ€™s right to information conducive to democratic life is to accept the conglomeratesâ€™ dictatorship.
The public sector, at least in theory, escapes this logic. Public interest there is an explicit reference, if only because part of the financing comes from public funds. However, the goals have also changed there. The CBC once had a triple mandate: “Inform, educate and entertain.” When Judy LaMarsh concluded the CBC should therefore offer courses, the provinces reacted. Quebec, Alberta and Ontario occupied the field with educational television. The federal government stopped pretending to “educate,” and courses were dropped from the CBC programming. Still the CBC has a mandate to entertain, and also to inform.
What of it? One trend is obvious: The public sector is losing momentum in information, both in quantity and quality. CBC audiences are dwindling and what theyâ€™re offered leaves them unsatisfied. Worse still, genre confusion forces audiences to spend more and more time looking for the nuggets that still hide in the programming. All programs fiddle with everything, newscasting lapses into commentary, musical styles turn into a cocktail, radio touts listeners for the ineptitude of television...
The CBC canâ€™t be evaluated. It claims to disregard ratings, but actually worships them. Programming is modified without the CRTCâ€™s consent. Whoever dares lament the deterioration of the language spoken on the air risks a scathing response: “Weâ€™re not aiming at an audience of 10 intellectuals!” If the criticism goes the other way and accuses the CBC of losing its traditional news and public affairs audiences, the reply is: “Weâ€™re not there for the ratings!” Itâ€™s variable-geometry reasoning, while it should be possible to evaluate the attainment of objectives subtly and clearly.
3. Media amnesia?
The media should not shirk the responsibilities that go hand in hand with intervention in the social arena. Publishing, broadcasting, going on-line cannot and should not be reduced to purely commercial activities. Yet this is the conception the huge majority of private sector media, and increasingly public radio and television, have of their rights. Everything is as if the essential components of democracy, life in society, and culture can be sold, alienated like any commercial, quantitative product.
To try and remedy this social or cultural skid by applying clumsy criteria to democracy or culture would be wrong. If the media ignore the qualitative dimensions of their role, quantitative measures will not awaken them. Besides, Canadian media politics treats the printed press and the so-called electronic press differently. The former enjoys near total freedom; in the latter, government bodies intervene either to grant operating licenses or set rules applicable to content or style. We pretend this intervention is necessary because of the scarce frequencies. We can surmise, however, the benevolent, paternalistic state trusts those who can read more than consumers of images or noises.
Yet, there have to be limits. A few simple principles should at once get media support. I think of the fairness doctrine, the respect of reputations, the separation of information from advertising, etc. Whether private or public, the media should accept such minimums. This is not the case unfortunately, which speaks volumes about the mediaâ€™s concern for public interest. Is it better at the CBC? The difference is less and less visible. For one, as I said, because the CBC accepts or rejects on a whim the quantitative evaluation of ratings. For another, because the CBC, which is held to a particular qualitative performance and is financed accordingly, has never developed credible, public qualitative evaluation criteria.
Some directions are imperative. At the CBC, rehabilitating the notion of public interest is obviously urgent. The development of qualitative evaluation mechanisms would be a step in that direction, and I believe universities could be of great help. In the private sector, I would be tempted to reduce the role of the controlling body to the granting of frequencies and the supervision of quotas required for the blossoming of the cultural exception. For the rest, I would let the market work, with one exception: In complaints with a likelihood of justification, broadcasters should help finance the adversary party. In telephony, the CRTC already applies this principle. Bell pays so consumers can hire experts comparable to those of the conglomerate. By so doing, the CRTC would rid itself of complaints. Ordinary courts could handle the arbitration, and the imbalance of financial resources would no longer favour broadcasters.
As regards journalists, the temporal division made by Armande Saint-Jean (Éthique de lâ€™information - Fondements et pratiques depuis 1960, PUM, 2002) is in itself a hard questioning. From 1960 to 1970, she says, they went through a period of awakening and growth. From 1970 to 1980, a period of activism. From 1980 to 1990, they adopted middle-class attitudes. The decade of 1990 to 2000 was one of mutation. There ends the survey, excusing the author for not saying where the rise of mood journalism, the crossbreeding of corporative interests, and the imbalance of forces between trade unions and media conglomerates will lead us.
- Public interest is not, in the eyes of the media, an important criterion. The verdict is clearer in the private sector, but equally applies to the public sector unfortunately.
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