Transcript Four Possible Positions

Media Ethics:
Freedom of the Press
T2 – 2009
Dan Turton
Dan Turton
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Freedom of the Press 1
John Stuart Mill
Of the Liberty of Thought and Discussion
The Harm Principle
Mill’s Very Simple Principle: the only
purpose for which power can be rightfully
exercised over members of a civilized
community, against their will, is to prevent
harm to others. [Mill, On Liberty]
What is Harm?
Mill is not clear on this, but in general:
An action is harmful if it involves a
setback in some persons interests
E.g. Chopping of their leg
E.g. Stealing their laptop
Two Kinds of Freedoms
1. Freedom of action
- Hardly anyone believes that citizens should be
allowed unrestricted freedom of action
2. Freedom of thought and expression
- But should we be restricted in what we can think or
say?
- Mill thinks its more harmful to censor expression
(even seemingly harmful ones!) because of the
importance of truth
- “It is the duty of governments, and of individuals, to
form the truest opinions they can”
How the Argument Works
The Harm Principle
(Unrestricted) Freedom of Expression
Free Press
The Orthodox Opinion
Mill: The time, it is to be hoped, is gone by, when
any defence would be necessary of the ‘liberty of
the press’ as one of the securities against corrupt
government.
We cannot be democratically free without a free
press because we need government-independent
information to be able to properly evaluate the
current government and make free
voting/protesting/information-seeking decisions
Some Other Opinions
We need an impartial press to provide us facts
(and only facts) about how we are governed in
order to exercise our democratic rights
But, we can’t because:
There is a liberal bias in the media!
There is a conservative bias in the media!
Mill’s More Radical Opinion
Even a government acting entirely at the
bequest of its people should not have the
power to censor opinions
“The power to limit expression is itself
illegitimate. The best government has no
more title to it than the worst.”
Mill’s Defence of Unrestricted
Freedom of Expression
• No one has the right to censor a dissenting opinion,
no matter how small
• If the opinion is right, “they are deprived of the
opportunity of exchanging error for truth”
• If wrong, they lose “the clearer perception and
livelier impression of truth, produced by its collision
with error”
• We can never be sure that the opinion we are
endeavouring to stifle is a false opinion; and if we
were sure, stifling it would be an evil still
Mill’s Basic Argument
1. Every dissenting opinion either could be
true or could not be true.
2. If it could be true, then the dissenting
opinion should not be censored.
3. If it couldn’t be true, then the dissenting
opinion should not be censored.
C. Therefore, no dissenting opinion should be
censored.
(P2) If the dissenting opinion could be
true, then it should not be censored
Mill believes this is the most important premise in the
argument, because he thinks every dissenting opinion
might for all we know be true. Why does he think that?
Answer: because our beliefs are fallible.
“To refuse a hearing to an opinion, because they are sure it
is false, is to assume that their certainty is the same thing
as absolute certainty. All silencing of discussion is an
assumption of infallibility …
“while everyone well knows himself to be fallible, few
think it necessary to take precautions against their own
fallibility, or admit the supposition that any opinion, of
which they feel very certain, may be one of the examples
of the error to which they acknowledge themselves to be
liable”
Overconfidence
In each of the following pairs, which city has more inhabitants:
1. Las Vegas, Miami
2. Sydney, Melbourne
3. Bonn, Heidelberg
In each of the following pairs,
which historical event happened first:
1. Signing of the Magna Carta, Birth of Mohammed
2. Death of Napoleon, Louisiana Purchase
3. Lincoln’s Assassination, Birth of Queen Victoria
After each answer, subjects were also asked:
How confident are you that your answer is correct?
50% 60% 70% 80% 90% 100%
(P2) If the dissenting opinion could be
true, then it should not be censored
If we silence an opinion, for all we know,
we are silencing truth.
When we make mistakes and errors in
judgement, the only way we can remedy the
mistake is by hearing and considering
alternative hypotheses.
Our beliefs are justified and rational to the
extent that they are supported by the total
available evidence.
(P3) If the dissenting opinion couldn’t be
true, then it should not be censored
True opinions tend to become prejudices unless
forced to be defended.
Unless true opinions are contested from time to
time, they lose their vitality.
True opinions can become mere meaningless
utterances unless they are contrasted to
alternatives.
True opinions aren’t always wholly true.
Dissenting opinions can help us get at the whole
truth.
A Problem for Mill?
When Publishing Opinions Clearly Causes Harm
• 1994 Rwandan genocide (~800,000 casualties)
partially incited and directed by the newspaper
Kangura and radio station Mille Collines
Summary of Mill
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Any opinion could be true
We shouldn’t censor any opinion
because any opinion could help
lead to the truth
Even if they’re false (which we
can’t be sure of), they can still
help us appreciate the truth
So, freedom of expression should
be upheld
That includes freedom of the press
Freedom of the Press 2
Joel Feinberg
Offensive Nuisances & Limits to the Free
Expression of Opinion
The Harm Principle
Mill’s Very Simple Principle: the only
purpose for which power can be rightfully
exercised over members of a civilized
community, against their will, is to prevent
harm to others. [Mill, On Liberty]
Mill’s View
The Harm Principle
(Unrestricted) Freedom of Expression
Free Press
Mill’s Basic Argument
1. Every dissenting opinion either could be
true or could not be true.
2. If it could be true, then the dissenting
opinion should not be censored.
3. If it couldn’t be true, then the dissenting
opinion should not be censored.
C. Therefore, no dissenting opinion should be
censored.
The Orthodox Liberal View
The Harm Principle
Restricted Freedom of Expression
Free Press
The Orthodox Liberal View
Some Limitations on Free Expression:
Defamation
Newsflash: Dan Turton secretly hates
philosophy
Causing Panic
Imagine the room is more crowded…
Invasion of Privacy!
Your beachfront frolicking front-page news?
Incitement to Crime
1994 Rwandan genocide
What is Harm?
Mill is not clear on this, but in general:
An action is harmful if it involves a
setback in some persons interests
E.g. Chopping of their leg
E.g. Stealing their laptop
The Harm Principle: A Recent Test Case
“The modern, secular society is rejected by some Muslims.
They demand a special position, insisting on special
consideration of their own religious feelings. It is
incompatible with contemporary democracy and freedom of
speech, where you must be ready to put up with insults,
mockery and ridicule. It is certainly not always attractive and
nice to look at, and it does not mean that religious feelings
should be made fun of at any price, but that is of minor
importance in the present context ... we are on our way to a
slippery slope where no-one can tell how the self-censorship
will end. That is why Morgenavisen Jyllands-Posten has
invited members of the Danish editorial cartoonists union to
draw Muhammad as they see him.” [Flemming Rose,
Jyllands-Posten, September 30, 2005 (emphasis added)]
The Harm Principle: A Recent Test Case
“In our opinion, the 12 drawings were sober. They
were not intended to be offensive, nor were they at
variance with Danish law, but they have indisputably
offended many Muslims for which we apologize.”
[Open Letter, Jyllands-Posten, 30 January 2006]
Feinberg’s Offense Principle
“It is always a good reason in support of a proposed
criminal prohibition that it would probably be an
effective way of preventing [wrongful] offense (as
opposed to injury or harm) to persons other than the
actor.”
An action is wrongfully offensive if it willfully or
recklessly causes unpleasant experiences (but not
harm) in others without a good reason for doing so
Unpleasant experiences such as: anger, disgust, shock,
shame, embarrassment, annoyance, fear, humiliation,
and affronts to one’s senses and sensibilities
Wrongful Offense or Offense?
• When you feel queasy because you happen to see
an accident victim while at the hospital, then the
victim has not wronged you – your offense was
not caused wrongfully
• When a colleague sends you a surprise picture of
an accident victim via email and it makes you
queasy, then they have wrongfully caused you
offense
Dealing with Offense
Wrongful offense should be dealt with by law, but not
criminal law if civil law or regional legislation can
better deal with it (because offense is not as serious a
problem as harm)
E.g. cease and desist orders
with threats of fines
Extreme or prolonged
wrongfully offensive will
probably be harmful
At the point it becomes
harmful, then the harm
principle should deal with it
Balancing Freedom & Offense
Curtailing someone’s freedom requires a good reason
Causing offense by itself is not necessarily a good
enough reason
The damage to the offender that prosecution would
cause needs to be outweighed by the damage to other
members of society through their unpleasant feelings
caused by the offense
Other considerations should also be considered
Including the accessibility of alternate options open to the
offender, the motives of the offender, and the location of the
offending
How Offensive is too Offensive?
Are there any experiences that, while harmless, are so
unpleasant that we can rightly demand legal
protection from them at the cost of other persons’
liberties”?
Taxi drivers are on strike. You are on a crowded bus
for 30mins to the airport. If you get off you will miss
your connecting flight to your dream holiday
A RIDE ON THE BUS
Affronts to the Senses
Story 1. A passenger who obviously hasn’t bathed
in more than a month sits down next to you. He
reeks of a barely tolerable stench. There is hardly
room to stand elsewhere on the bus and all other
seats are occupied.
Feinberg is Offended!
Feinberg: offenses in any of these six categories could
be extreme enough to warrant prosecution
Therefore, some non-harmful actions/expressions do
cause sufficient offense for the state to have reason to
restrict their use even though that impinges on the
liberties of people
I.e. we need the Offense Principle as well as Mill’s
Harm Principle to properly restrict freedom of
action/expression
Limits to the Free Expression
of Opinion
1.
2.
3.
4.
5.
The Harm and Offense Principles should limit
freedom of expression in the following cases:
Defamation and “Malicious Truth”
Invasions of privacy
Causing panic
Provoking retaliatory violence
Incitement to crime or insurrection
But not in cases of sedition (where it is not going to
lead to the exceptions above)
Creating Feinberg’s View
The Harm Principle and the Offense Principle
Restricted Freedom of Expression
Free Press
The Press & Privacy
The press can publish anything of legitimate public
interest (based on harm principle and above
restrictions) even if it invades someone’s privacy
The person’s right to privacy is balanced against the
public’s ‘right to know’
People who have put themselves in the public eye
have legally forfeited much of their privacy
Reluctant public characters
can become news and lose
much of their right to
privacy involuntarily!
Willie Apiata VC
Reluctant hero, Willie Apiata VC, became public
property (to some extent) whether he liked it or not
He became news, the public became interested, and
journalists tracked him down because the public have
a ‘right to know’ about legitimate matters of public
interest
Still it is a balancing act
And, “photographs and descriptions with no plausible
appeal except to the morbid and sensational can have
very little weight in the scales”
So, balancing his
privacy and the public’s
‘right to know’
probably means that
photos of him at the
beach should not be
published but his heroic
actions should be –
even if he doesn’t want
them to
But his recent book
means that he has given
up his right to privacy
at the beach
Summary of Feinberg on the
Freedom of the Press
Actions and expressions should be restricted by the
harm principle and the offense principle
The press should be allowed to publish anything of
legitimate public interest that does not cause a greater
balance of harm or offense
It should be very rare for a published opinion to be
restricted (or punished) because of the large
furthering of public interests from publishing
compared to the small harm or offense caused a to
much smaller group
Freedom of the Press 3
Phillip Montague
Government, the Press, and the People’s
Right to Know
Mill’s View
The Harm Principle
(Unrestricted) Freedom of Expression
Free Press
The Orthodox Liberal View
The Harm Principle
Restricted Freedom of Expression
Free Press
Creating Feinberg’s View
The Harm Principle and the Offense Principle
Restricted Freedom of Expression
Free Press
Montague’s Main Points
• Montague’s Negative Claim:
– The moral justification for a free
press is not to be founded on a
general freedom of expression.
• Montague’s Positive Claim –
His view:
– The moral justification for a free
press is to be founded on a ‘right
to know’.
Montague’s Negative Claim
• The moral justification for a free press is
not to be founded on a general freedom of
expression
• It could be the case that freedom of
expression was limited in some way for
ordinary citizens, but not for the press or
some other special group (academics)
• The moral justification for a free press
should be based on the role that we expect
the press to play in our society
Montague’s View
The Right to Determine the Course of Our Own Life
The Right to Know the Relevant Information to do this
Right to Seek & be Given Info. about How We are Governed
Govt. Obligation to Set Up
Government Obligation
Independent Mechanisms of Disclosure
to Disclose Such
Information
Official Information Act
Free Press: Freedom of Journalists to
Publish Such Information Uncensored
General Claim Rights
• General rights are rights held against
the world at large
• Claim rights create corresponding
obligations from others
– E.g. the right to education creates the
obligation to provide education
• General claim rights create obligations
on everyone else to do or not do certain
things
General Claim Right to Property
• Everyone else has
the obligation not to
interfere with your
property or make
decisions about it
(even if they don’t
affect you)
• E.g. The lazy
Neighbour
General Claim Right to Privacy
• Everyone else has
the obligation not to
interfere with your
privacy or make
decisions about it
(even if they don’t
affect you)
• E.g. The pervy
Neighbour
Active vs. Passive Rights
• An active right to something is the right
to try to obtain that thing for yourself
• A passive right to something is the right
to have that thing provided for you
– E.g. kids in NZ have a passive right to
education
The Right to Know
• Needs an area of discretion
– Can’t have a passive or active right to know
everything!
• So, “people have a right to be provided with
information relevant to making certain
decisions about their well-being”
Justification for a Free Press
• The freedom of the press to print opinions
about relevant matters is mainly justified by
the idea that a free press is likely to
encourage government disclosure of
relevant information
• Relevant info is any info that helps citizens
to determine the course of their own lives,
pursue their own well-being
– E.g. political info – Does John Key really
believe in climate change?
– E.g. health info – Are cigarettes really good for
me?
An Objection to Montague
If Montague’s justification were the only one
available, then justified legal rights to freedom of
the press would be too limited in scope. It would
extend only to the publication of material about
the workings of Government.
Montague’s Response
These foundations can justify a broader freedom of
the press on grounds like the following:
Montague’s Response Cont.
1.
People can have rights to information that is non-political
in nature but which government officials might be
disinclined to divulge.
E.g. Effects of education legislation on student well-being
2.
There might be information possessed by public officials
with which citizens have rights to be provided, and which
the officials are quite willing to divulge, but which the
press is better able to disseminate.
E.g. Tsunami warnings
3.
There are grey areas where whether people have rights to
be provided with information is extremely difficult to
discern with any confidence, and in which the press might
justifiably be given the benefit of the doubt.
E.g. Clinton’s sex life?
Summary of Montague
• We have a passive and active
general claim right to know
(seek and be given) information that
is important for determining the course
of our lives
• Political information is important for this
• A free press makes it much more likely that we
can obtain this information
• Therefore, our right to know (about certain
things) justifies a free press
Presuppositions Common to all Models
•
•
1.
2.
3.
4.
When the press is totally free, the public is more
likely to obtain true info about any domain
The public has a right to know at least some things
Mill: the public always has a right to true info
Orthodox Liberals: the public has a right to true
information (except when that causes greater harm)
Feinberg: the public has a right to true information
(except when that causes greater harm or extreme
wrongful offense)
Montague: the public has a right to true information
(but only if it helps us determine the course of our
own lives)
Chomsky’s Challenge
•
A free press still seems to fail to provide us with
the whole truth
• The five filters on truth:
1. Size, ownership, and profit orientation,
2. Advertising,
3. Sourcing,
4. Flak,
5. Anti-communism (and its ideological
counterparts).
Watch Manufacturing Consent for free:
http://video.google.com/videoplay?docid=5631882395226827730