Readers are our regulators

Here’s a post I put up on the Guardian’s Comment is Free (comment there).

Please resist the temptation to impose government regulation on journalism in the aftermath of phone-hacking. Oh, I know, it would be sweet justice for Murdoch pere et fils to be the cause of expanding government authority. But danger lies there. Regulation requires teeth and teeth carry power.

Let me begin by posing four questions:

What activities are to be regulated? Activities that are already criminal, like News Corp.’s, should be prosecuted as crimes. Then does speech itself become the target? In the United States, we grapple with this question in the one exception to our First Amendment, which is about to be tested in the Supreme Court. That loophole to the Bill of Rights gives the Federal Communications Commission authority to regulate and fine mere words on TV and radio. I have argued in the pages of the Guardian that “bullshit” is political speech but we are forbidden to speak it on our air — even about this regulation itself — under threat of a regulator’s chill and penalty. What we need today is more speech, not less.

What should a regulator do in the case of violations? Fine the offender into submission? Close the publication? Does that not give your government the same weapon used by dictators elsewhere against journalists? Doesn’t this return the UK to a regime of licensing the press? Remember that he who grants licenses may also not grant them or revoke them.

Who is the proper regulator? Clearly, it is not the industry. The Press Complaints Commission has proven to be nothing more than a diaphanous gown for the devil. But government? Is government the proper body to supervise the press, to set and oversee its standards? How could it be? The watched become the watchers’ watchers. Certainly government has shown itself to be incompetent and mightily conflicted in this case, as alleged overseers of the crimes at hand end up in high places and the police themselves are reported to be beneficiaries of corruption.

Finally, who is to be regulated? In other words, who is the press? That’s the key question raised here. Alan Rusbridger posed it in his forceful soliloquy on this amazing week: Is Huffington Post the press? Guido Fawkes? By extension, is any blogging citizen? Any YouTube commentator or Twitter witness-cum-reporter? Yes, we wrangle with this same question in the United States, but in the context of who should receive the rights and protections of the press — namely, shield laws — rather than who should be under the thumb of a government agency.

The goal must not be to further solidify the hegemony of the media-government complex but instead to bust it open. We have the tools at hand to do that: journalists, the public they serve, and their new tool of publicness, the internet.

As Rusbridger also said in that video, this was a week marked by the worst of journalism and the best of journalism. Reporting is wot did the bastards in. Nick Davies is the Woodward and Bernstein of the age though it’s a pity that his Nixon built his nearly absolute power — and nearly inevitable corruption — in our profession. The first and most important protection we will have against the likes of him is a business model for the Guardian to sustain Davies and support future generations like him. The second most important thing the Guardian can do is set an example for other journalists.

I was talking with Craig Newmark, founder of craigslist, just yesterday about his cause and favorite obsession: fact-checking. There are scattered organizations that endeavor to check politicians’ and journalists mistakes and lies. But no organization can do it all. How do we scale fact-checking? My thought is that we should see every news organization place a box next to all its reports inviting fact-checking: readers flagging dubious assertions and journalists and readers picking up the challenge to investigate. The Washington Post and the Torrington (Connecticut) Register Citizen have them.

That small addition raises the standards and expectations for journalists’ work and, more importantly, opens the process of journalism to the public, inviting them to act as both watchers and collaborators.

I also think we must increase our diligence to all but eliminate the scourge of the anonymous source. Note that I left an opening for whistleblowers and victims and the too-rare true investigators like Davies. But if we had as an expectation that the News of the World should have told us where and how it learned what it learned about its 4,000 victims, it would have been less able to perpetrate its crimes of hacking and bribery.

The Guardian is making openness its hallmark and this is what it must mean: Rather than closing down journalism to some legislative definition of who may practice the craft, we must open its functions to all. Rather than enabling government and media to become even more entwined, we must explode their bonds and open up the business of both for all to see. Regulators, bureaucrats, politicians, and titans of a dying industry are not the ones to do that.

In researching my next book, Public Parts, I dared to read Jürgen Habermas and his theory of the public sphere. Habermas says the public sphere first emerged as a counterweight to the power of government in the rational, critical debate of the coffeehouses and salons of the 18th century. But almost as soon as this public sphere formed, Habermas laments, it was corrupted and overtaken by mass media. Now, at last, is our opportunity to reverse that flow and to recapture our public sphere.

There’s where this tale’s sweet irony lies: It’s Murdoch & Co. who set the charges to blow apart the very institutional power and cozy relationships they built.

: LATER: I’m disturbed by a fundamentally undemocratic theme I see in the comments here and at the Guardian: Some blame the public for the excesses of Murdoch, Inc. That’s essentially cynical and condescending toward the public. Some don’t trust the public to regulate media. If you distrust the public that much, then you might as well throw in the towel on democracy and freemarkets, not to mention journalism and education (why inform the public if they’re a mass of boobs?). But these folks — just like institutional media — better get used to the public having a greater voice and regulating their behavior, for that’s where we’re headed: back to the coffee house.

  • If the public are good regulators then I assume you would accept that the public would have Casey Anthony found guilty even though a court of her peers found differently? The “court of public opinion” isn’t always wise or informed.

    Making difficult and appropriate, but socially unpopular, decisions is part of the concept of justice.

    This isn’t a call for the government to manage the media any more than it is a call for the government to manage legal interactions. However, the government does ensure that there are independent courts where parties to a conflict can get an independent hearing and finding. The government also acts on behalf of the public – who vote for it – to manage, create and implement legislation in the public’s interest.

    The same should be true of media regulation. How does someone like Christopher Jefferies recover his reputation when media interest has prejudged him in an ongoing murder investigation? He was entirely exonerated and independent courts found the Mirror and the Sun guilty of contempt of court for their coverage. In the future would he have to take to social media to rehabilitate his reputation and seek redress?

    Saying that “the public will regulate” isn’t good enough. How would that actually work? How would you prevent sock-puppets and distributed proxy voting? People’s lives are not X-Factor, something that Casey Anthony must deal with for the rest of her life.

    An impartial regulator is paid to pay attention even when the public has lost interest. Many arguments are technical in nature and require specialist analysis. You really want courts to decide by popularity?

    Who is the proper regulator? The law; duly enforced by its legally appointed and constituted representatives in a hearing that is transparent, open and consistent.

    For a more nuanced take on regulating the media, read George Brock, head of journalism at City University London.

  • I agree in keeping Government well away from the press. We must preserve the right to question and speak freely. Any attempt to regulate in the UK will be seen by voters as censorship and I doubt it will happen – it’ll be political suicide.

    Existing criminal laws are more than sufficient to punish any wrong doing, just as in the case of the royal phone hacking case.

  • One more thing. If you don’t like what a paper does, don’t buy the bloody thing! That’s public regulation. Ford, nPower and others did similar by pulling advertising.

  • 2.8 million people really did like News of the World.

  • Richard K

    Funny how smart people like you advocate little if any governmental intrusion into markets you understand well (in your case, the press) yet advocate massive governmental intrusion into most everything else (healthcare, financial markets, etc.). I am opposed to governmental intrusion in just about everything.

  • Alphabet Soup

    Common Purpose is exploiting the News of the World hacking scandal to further its media control agenda:

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  • Niall Shanahan

    One of the things that marks a huge difference in the respective US and UK media cultures, is that UK broadcast news is independently regulated by Ofcom.

    The upshot there is while BBC news has considerably lowered the benchmark in news presentation (chasing Sky News and ITN down the rolling news rabbit hole), UK broadcast media, public and commercial, have been limited in their excesses.

    Contrast it to Fox News and similar US broadcasters, where unfettered hours of opinion broadcasting by O’Reilly, Hannity, Beck and (the daddy of them all) Limbaugh have completely poisoned the public discourse. To the extent that so many US citizens believe that their president is a muslim.

    I am using broad brush strokes here, but there is a case for independent regulation.

    There is no question that print media is dying. I think the events of the last week are a huge convulsion in that process, but there is little doubt the beast is expiring. We are all in the business of news aggregation now. The future of news is certainly more discursive, because we can all broadcast and publish our responses to everything (the realisation of Derrida’s observations on criticism) I think we have a few years to go before we know where this road leads, and there will be many more convulsions yet. But there won’t necessarily be room in the coffee house for every single one of us – new gatekeepers will emerge who will figure out how to monetize the news process – and not everyone will want to go to the coffee house in any event.

    Not unless they’re screening cats playing pianos on a loop.

    But in the meantime, independent regulation is not a barrier to free speech. Like the much abused term ‘political correctness’, it is about an agreed and common set of values that deter us from using language and words to denigrate and harm each other. That doesn’t compromise free speech, it merely persuades us to think about what we are saying.

    • Richard K

      This is very defective thinking: “…independent regulation is not a barrier to free speech. Like the much abused term ‘political correctness’, it is about an agreed and common set of values that deter us from using language and words to denigrate and harm each other. That doesn’t compromise free speech, it merely persuades us to think about what we are saying.”

      First, there isn’t such thing as “independent regulation.”

      Second, it’s absurd to argue that we can find “an agreed and common set of values”. Perhaps you can enforce with guns the illusion of having it — like in Cuba, Nazi Germany or an Orwellian novel — but certainly not in a free country.

      I totally dislike talking-heads from the right (you mention O’Reilly et al) as much as those from the left (you mention no one, because they probably resonate with your political perspective). But I don’t find them “poisonous”, just worthless and boring.

      • Niall Shanahan

        Godwin’s Law fail.

        I win.

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