Thursday, January 24, 2013

Does the value of free speech depend solely on its contribution to democracy?

Several rationales for free speech were discussed in the Finkelstein report on media regulation, which was released in March last year. Incidentally, the report states that it 'must be attributed' as the 'Report of the Independent Inquiry into the Media and Media Regulation'.

Since the report discusses rationales for free speech in a chapter headed 'The democratic indispensability of a free press', it is obvious from the table of contents that Ray Finkelstein sees the rationale for free speech mainly in terms of its contribution to democracy.

I agree that free speech is the life blood of democracy but, as discussed in Free to Flourish, my prior conviction is that the rationale for freedom and democracy rests on their contribution to human flourishing. As I see it, a balanced account of the contribution of free speech to human flourishing would recognize that free speech – freedom of expression - expands the opportunities available to individuals in ways that are not necessarily associated with democratic institutions. It would note that democracy emerged as an outcome of a process intended to protect the rights of citizens (including their right to free speech). It would also acknowledge that the merits of democracy still depend on the potential of democratic processes to defend free speech and the other freedoms that provide the basis for human flourishing.

Defenders of Finkelstein could suggest that 'self-fulfilment and autonomy' and libertarian rationales for free speech are discussed in his report. However, the discussion of self-fulfilment focuses on the views of Katherine Gelber – a follower of Martha Nussbaum– who seems only prepared to defend speech 'that is constitutive of the formation and planning of one's life in ways commensurate with one's informed conception of the good'. Elitist nonsense! Who is to decide what constitutes 'an informed conception of the good'? Are adults who do not have 'an informed conception of the good' to be denied the right to speak their minds?  

Finkelstein's discussion of libertarian theories of the press is under the heading, 'Social responsibility: a theory of the press', so it is not surprising that libertarianism is given short shrift. From what I had previously read about the report, I was expecting that the idea of a free press would be assaulted on the grounds of monopoly, potential abuse or power etc. yawn, yawn. But, after going through all that, Finkelstein asserts that libertarian theory did not provide a workable solution to the challenge provided by broadcasting and that governments 'found it necessary to intervene …'. He adds: 'This amounted to a rejection of libertarian theory'.

Gulp!  So, why doesn't Finkelstein tell us what he thinks, rather than pretending that there was no workable solution other than regulating to control the activities of broadcasters? The workable market solution, as Ray and just about everyone must know, is allocation of the broadcast spectrum, like other scarce resources, to the highest bidder. Does the author have good reasons to believe that would not enable scarce resources go to their highest value use? If the Honourable Ray Finkelstein, QC, former judge of the Federal Court and former president of the Australian Competition Tribunal, thinks that the way government currently allocates the broadcast spectrum is better than the market solution, why doesn't he make the case?

Finkelstein's discussion of the 'search for truth' as a rationale for free speech raises discussion of the 'marketplace of ideas'. He seems somewhat pessimistic about the ability of people to discover truth, but nevertheless remains optimistic about the benefits of democratic discourse – subject to government regulation to ensure social responsibility. He ends up seeing a need to obtain a balance between demands that the media be accountable for exercise of its power and the need for the media to be free to hold governments to account.

I found that discussion to be peculiar. Once the concept of a market for ideas was introduced, it would be logical to expect some exploration of the nature of this market. There is mention of monopoly and competition in the rejection of libertarianism, but no discussion of contestability. Elsewhere in the report, the idea of the conventional media being increasingly exposed to competition from on-line sources is mentioned, as is public scepticism about the veracity of media reports, but the discussion of the rationale for free speech proceeds as though every media outlet has exclusive access to the minds of its customers.

Contestability seems to me to be at the crux of the issue of whether media proprietors and editors have power to exert undue influence on public opinion. The report provides some evidence of media outlets presenting false or misleading reports, but doesn't provide any evidence that these have gone uncorrected elsewhere in the media.

Overall, in my view, the Finkelstein report on media regulation provides an unbalanced account of the rationale for free speech. This part of the report seems to me to display an amazingly brazen degree of bias from an author who favours greater regulation to ensure balance in private media reporting. Some readers might be thinking that comment just reflects the fact that different people have different views of what reporting and analysis is balanced and unbalanced. That is a valid point to make whenever issues of balance arise. In this instance, however, I doubt whether many people who have some knowledge of the topic would view this report as providing a balanced account of the rationale for free speech.

In my last post, I promised to review In Defence of Freedom of Speech, by Chris Berg. Unfortunately, that will have to wait. I thought it would be a good idea to take a quick look at the Finkelstein report before writing my review – and got myself side-tracked!  

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