Finkelstein's council would have the power to suppress criticism of those in authority

Originally published in The Australian

Even in the U.S., Ray Finkelstein's report into the media and media deregulation made waves.  The report was right to critique the failure of the press to effectively respond to complaints about inaccurate, biased or unduly invasive coverage.  But its nearly 500 pages neglected to answer the most important question.  Would an unelected government bureaucracy really be better at fostering an independent and responsible press?  To ask that question is to answer it, as Americans have learned the hard way.

Last year, Communications Minister Stephen Conroy asked former Federal Court judge Finkelstein to investigate "ways of substantially strengthening the independence and effectiveness of the Australian Press Council with particular reference to the handling of complaints."  And investigate he did.

The Finkelstein report cataloged the failures of the press in Australia and abroad.  It cited surveys that show the public would like the press to be more accountable.  In May, the Convergence Review final report was released, "agreeing with much of the analysis and some of the findings" of the Finkelstein report. The problem with the report is not the diagnosis, it is the prescription.  The Australian Press Council was founded in 1976 as voluntary organization to promote good standards of media practice.  Anyone with a complaint about a member may complain to the Press Council.  If it sustains the complaint, the Press Council can call for a correction, retraction or similar corrective action.  Indeed, it has upheld more than 41 percent of the nearly 9000 complaints received since 1988.  Its members are committed to supporting and strengthening the council.  They have agreed to increase its funding and limit their ability to withdraw from its membership.

But the Finkelstein report would transform these ethical guidelines into legal requirements.  It envisions a world in which media organizations would be required to join a new body, the News Media Council, and submit to its jurisdiction.  If a politician, celebrity, or other person decides an article was unfair or insensitive – even if the article was entirely accurate – they could ask this government Media Council to order a media outlet to publish an apology, correction, retraction, or reply.  If the outlet did not obey, it could be held in contempt of court, presumably backed up by fines.

The US has flirted with this kind of censorship, often in wartime.  But the American experience led to a deep distrust of the ability of government officials to act as what one court called "superior editors of the press."  Our Supreme Court concluded that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."  Even genuinely harmful speech is punished not by government censorship or restraints on publication but by private lawsuits for libel and invasion of privacy.  This "breathing space" for speech and opinion is fundamental to our democracy.

"If there is any fixed star in our constitutional constellation," our Supreme Court ruled in 1943, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

What is truly remarkable about the Finkelstein report is not its skepticism of the press's ability to police its obligations to the public.  It is the unquestioning faith in the ability to dictate what statements are incorrect, what opinions are unfair, what coverage is invasive and what positions are politically intolerable.  The report would have this orthodoxy pronounced by the revamped Media Council, which would be led by "a retired judge or other eminent lawyer."

What kind of issues would this mandatory Media Council be drawn into?  One need look no further than the present voluntary Press Council where many complaints are not about inaccuracies but about coverage thought to be unfair or hurtful, insensitive or derogatory.

This year, for example, the council agreed to consider the complaint from the husband of a prominent politician upset that his wife had been compared with Kim Kardashian.  The council ruled the comment was "not so offensive as to outweigh the great importance in the public interest of allowing robust public discussion," but it is extraordinary that the council even accepted the complaint to consider in the first place.

The report claims such heavy-handed regulation is necessary because the time-honored idea of a self-regulating "marketplace of ideas" has become a "romantic fiction" given the concentration of newspaper ownership in Australia.  Even if this was true a few decades ago, when newspapers were the only game in town, it is self-evidently false now.  There are innumerable ways that alternative ideas can get out, as the report acknowledged.  Even for those who confine themselves to traditional newspapers (an ever shrinking number), stories bubble up from social or alternative media into the mainstream media.

The report also reassures the reader that this new mandatory Media Council would not constitute government censorship because its members would be independent of the government.  Even if this were true in practice, is that better?  If the nation is set to unleash an official body to dictate what the press may cover, is it really better that it is also totally unaccountable even to the elected government?

The Finkelstein report laments the decline of the media's watchdog function in the face of increasing financial pressures.  In the next breath, however, it would impose additional financial and legal burdens on the exercise of that function.  Press lawyers know all too well that even the question of what is true or false involves many shades of grey, and is fraught with the risk that disfavored viewpoints will be censored.

Beyond the broadly shared goals of fairness and accuracy, it is hard to imagine a set of predictable, specific rules that could be formulated and applied to the nearly infinite set of variables that a reporter faces.  This would leave the council with nearly unchecked discretion to suppress or punish unpopular views, including criticism of those in power.

"Democracy is the worst form of government," Winston Churchill said, "except for all those other forms that have been tried from time to time."  Similarly, a free press does not persist in democracies because it is easy or always leads to the most satisfying result.  A free press persists because its failings pale in comparison to those seen in regimes where the government has arrogated to itself, or its independent and unelected representatives, the power to decide what is true and false, fair and unfair, and which opinions will be permitted to be heard.

Laura R. Handman is a partner at Davis Wright Tremaine, LLP, in the Washington, D.C. and New York offices.  She represents many media clients, including News Corporation entities, and testified in congress in support of the SPEECH Act, which prohibits US courts from enforcing foreign libel judgments inconsistent with the first amendment of the US constitution.