Liberty, not Leveson

Brian Leveson's report, "An inquiry into the culture, practices and ethics of the press", published on 29 November, makes for depressing reading. It is reassuring that David Cameron has indicated that he is not minded to introduce a statute-backed regulatory body, but it would have been more reassuring if the other party leaders had said the same. The risk now is that Leveson's work will give respectability to the idea of new regulation, and that some future government will follow his recommendations. It is therefore worth setting out just how much is wrong with his ideas, although I shall not catalogue every criticism that could be made.

References in what follows are to the Executive Summary, with page numbers being those printed on the pages (that is, 1 less than the PDF file page numbers, on account of the front cover). I encourage people to read his own statement of his proposals. I shall quote some of his words here, and outline some of his points and proposals in my own words, but I shall not attempt to give my own overall summary. The Executive Summary, and the full report, are available on the enquiry site, here:

http://www.levesoninquiry.org.uk/

The first general point to make is that any regulatory system is much worse in its effects than would appear from a description of the system. The reason is that people self-censor in order to keep themselves out of trouble. So if Leveson's recommendations strike anyone as superficially reasonable, one should think of the real impact they would have. Under his system, would we have found out about MPs stealing our money under their expenses system? Or about the massive failure of police and social services in some parts of the country to prevent the sexual grooming of teenagers? Or about entertainers engaging in highly aggressive tax avoidance? Or about recently retired service chiefs offering to help weapons companies make their case to the Ministry of Defence?

The second general point is that it is one thing to say that some bad things have happened (which they have). It is quite another to say that there should be a new law, or a new regulatory system. Given the wide effects of new laws, or new regulatory systems, on people whose actions would not have been considered wrong in the first place, it may well be that on balance, it would be better to deal with problem cases using laws that only apply to the people who do wrong, and only on the occasions when they do wrong. Indeed, we have laws against telephone hacking, against harassment, and against libel, already. The problem has been a lack of enforcement, not a lack of law. One can argue about whether the laws in place are the right ones, but one cannot argue that the enforcers were rendered incapable of acting in the cases that have come to light. When Leveson draws attention to examples of hacking and harassment (paragraphs 30 to 35, pages 9 and 10), he does not make succeed in making any case for new laws. He tries to let the enforcers off the hook in paragraphs 47 and 48 (page 13), but his attempt to do so, and thereby to justify changes to the regulatory system, is unconvincing.

The third general point is that freedom matters, enormously. My own view is that we should have complete freedom of expression, to the strong standard of the First Amendment (with the "imminent lawless action" limit that was laid down in Brandenburg v Ohio in 1969), not to the weak standard of Article 10 of the European Convention, with all its ifs and buts. And our freedom to publish and to read should be seen as ours, automatically and unconditionally. We should never let it be seen as a generous gift from the state, that the authorities may legitimately restrict.

The fourth general point is that allowing newspapers freedom to print the stories they get, is not enough. A lot of hard journalistic work is needed to get the stories, and to gather enough evidence to defend oneself against lawyers who threaten injunctions and libel suits in order to stop us learning the truth about their clients. Newspapers need the freedom to use a decent range of methods. Telephone and e-mail hacking may be beyond the pale. But taking on a false identity, so long as it is done without intent to defraud of property or the like, and rummaging through dustbins, should be acceptable. The story about service chiefs relied on impersonation, as have stories about businesses that arrange fake marriages. (I would extend the same permission to citizen journalists, bloggers and the like. I don't think the established newspapers should have any special privileges.) The general point is that regulation of what journalists do, can be as oppressive just as much as regulation of what gets printed.

The final general point is that the horse has bolted. Blogs outside the jurisdiction can do what they like. They are unregulated, and there is nothing at all that the UK authorities can do about that, unless they go down the route of China and Saudi Arabia and build a national firewall, or achieve a similar result by pressuring Internet service providers to block whatever the courts say should be blocked. Not only would that place the UK firmly in the same box as the regimes just mentioned. It would also be circumventable, using proxy servers and encryption. I hope that it would also lead to mass civil disobedience on Twitter, using rhyming slang or the like to repeat what we were not allowed to read, just for the hell of it. As readers might guess, I regard this new impossibility of regulating communication as a very good thing.

I shall now pick out a few passages in Brian Leveson's report.

In paragraph 6 (page 4), we read: "As a result of this principle [of a free press] which operates as one of the cornerstones of our democracy, the press is given significant and special rights in this country which I recognise and have freely supported both as barrister and judge. With these rights, however, come responsibilities to the public interest: to respect the truth, to obey the law and to uphold the rights and liberties of individuals".

Leveson here falls into the language of the schoolroom, with the state as the teacher. Your rights are conditional. Behave, or they might be taken away, and it would be acceptable to take them away. The attitude is echoed in the second paragraph of Article 10 of the European Convention: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties ... ". We must reject this attitude, utterly and completely. Our right to express and publish what we want should be ours, unconditionally. If, in the exercise of that right, someone does harm to another, deal with that as an individual instance. But do not suggest that our right of expression and publication, in general, should be limited.

In paragraphs 32 to 37 (pages 10 and 11), Leveson expresses concern about the stories that the press choose to pursue, and then to print. Are these stories in the public interest? That is not a judgement the press should be asked to make. If newspapers are required to stop and think whether publication would be in the public interest, they will be greatly inhibited in their work. Moreover, it is not their job to worry about the public interest. They are private businesses, fully entitled to plough their own furrow, not public services.

Leveson proposes a body grounded in statute, but run independently of the Government and of Parliament. Membership would not be compulsory, but there would be incentives to join. (He says legislation would be essential in order to give those incentives - paragraph 70, page 17. That is, he attempts to justify the use of legislation on the basis of a minor feature of the system - not a good justification at all.) I shall turn to his specific recommendations in a moment, but first, we should note his claims about the status of what he proposes.

In paragraph 71 (page 17), we read: "It is worth being clear what this legislation would not do. The legislation would not establish a body to regulate the press: it would be up to the press to come forward with their own body that meets the criteria laid down". That strikes me as mere sophistry. If there is a law telling people to go and set up a system, that is not much different from a law that sets up a system but leaves the details to be worked out.

In paragraph 72 (page 17), we read: "[The legislation] would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press". That sounds very nice, but it is really just a little bonus to make us feel better about the legislation. And it is a fake bonus. We have that freedom anyway. The only legislation that would really make a difference would be a British version of the First Amendment - couched in the same terms, "Parliament shall make no law ...", rather than "Parliament decrees that ...", to avoid giving the impression that our rights are in the gift of Parliament. What is more, any legislation guaranteeing freedom of the press that was useful, could be enacted independently of the rest of Leveson's proposals.

In paragraph 73 (page 17), we read: "Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press". That is more sophistry, bordering on terminological inexactitude.

In paragraphs 74 to 76 (pages 17 and 18), we read: "In the light of all that has been said, I must recognise the possibility that the industry could fail to rise to this challenge and be unable or unwilling to establish a system of independent self-regulation that meets the criteria. I have made it clear that I firmly believe it to be in the best interest of the public and the industry that it should indeed accept the challenge. What is more, given the public entitlement to some accountability of the press, I do not think that either the victims or the public would accept the outcome if the industry did not grasp this opportunity. Neither do I think the public would find it acceptable if I were to overlook the consequences of the industry doing so. For the sake of completeness I have therefore set out in the Report the options that I believe would be open to the Government to pursue, and some views on the potential way forward, in that regrettable event. ... I would very much prefer that the focus of all concerned should be on attempting to deliver the effective self regulation that I have set out - organised by the industry to a standard  that the public can accept. In my judgement, this provides the least burdensome method of ensuring some form of adequate independent regulatory oversight of press standards for the future. ..."

In these paragraphs, Leveson takes us back to the schoolroom: "Now children, you really ought to comply. The public won't accept it if you don't. We have alternatives if you don't comply, and they would be more trouble for everyone". The only appropriate response to these unveiled threats is a raspberry.

Now we may turn to the recommendations. Leveson recommends the establishment of an independent board, with the power to require compliance with a code. It would also have the power to impose penalties of up to 1% of turnover with a maximum of £1m for serious or systematic breaches (recommendation 19, page 34). Newspapers would not have to join, so they would not have to expose themselves to these extra-judicial fines, but if they did not join, they could expect to be given a harder time than members in any civil legal proceedings, both in respect of damages (paragraph 68, page 16) and in respect of costs (recommendation 26, pages 35 to 36). That is, there would be a potential financial squeeze on newspapers, in one way if they joined and in another way if they did not. This is a new type of voluntary: you can choose to be boiled, or to be fried. I do not suggest that it should no longer be possible to take actions against newspapers, only that it is wrong to force a move away from the current position, even if one has a choice between making the penalties extra-judicial or making them higher than they are now.

Recommendation 38 (page 37) is: "In conjunction with Recommendation 11 above, consideration should also be given to Code amendments which, while fully protecting freedom of speech and the freedom of the press, would equip that body with the power to intervene in cases of allegedly discriminatory reporting, and in so doing reflect the spirit of equalities legislation".

This recommendation shows how far we have fallen away from the ideal of freedom. Leveson would like an element in a code of practice that would require newspapers to be politically correct. How could any friend of liberty possibly think that would be a good idea?

The luck of ancestry

A letter by Maurice Winter in Cambridge Alumni Magazine, issue 67, Michaelmas 2012, commenting on an article in issue 66, includes the following: "Luck is of fundamental importance to all sportspeople. Take Usain Bolt. It is pure luck that his parents provided him with the genes that built him in the way they did".

One reading of that, which may very well be the reading that the author intended, makes it straightforwardly true. We have different genetic endowments, and the result is that many of us would never be able to keep up with the best in sports, however hard we trained. But there is another reading, and it is one that draws our attention to the question of what kind of luck may be said to be associated with ancestry.

The reading is that the future Usain Bolt was there, before conception, waiting to be assigned genes, and perhaps waiting to be assigned parents. On this reading, it was pure luck that the genes that made great sporting achievement possible fell to him, rather than to someone else, or to nobody.

It is certainly pure luck that this particular combination of genes came together in a human being at all. When two people have a child, with a particular genetic make-up, there are many other genetic make-ups that could have been embodied in a child of the same parents, but that were not so embodied.

But this does not mean that we should accept the picture of a future Usain Bolt, waiting to be given a genetic endowment. While the term "Usain Bolt" now has a referent, it does not have any referent in temporal slices of the world that come before his conception. There is a connection with Kripke's thoughts on a person's being essentially the person made from that particular sperm and egg. They could not be that person until the relevant sperm and egg had come together. It is the coming together that makes the operation of a Kripke-type criterion of identity possible. Quine's slogan, "No entity without identity", has a use at this point.

If we are not to accept the picture of a pre-conception Usain Bolt, it was not luck that Usain Bolt had his genetic endowment. It was luck that this genetic endowment was embodied, but not luck that he got it. And we should not be distracted by the (probable) fact that only his parents could have given precisely that endowment to a child. Again, it was not luck that he was conceived in that family, rather than in any other. He did not exist, in any sense, until conceived.

So much may look obvious, once it has been said. But it is worth thinking it through, in order to understand the nature of the luck that is involved in inheritance.

I would not draw any conclusions about what to do. These thoughts might make it illegitimate to say things like, "It is most unfortunate that X got saddled with those genes", in a sense that would imply that X could have had different genes. Someone with different genes would not have been X. But these thoughts would not make it illegitimate to say things like, "Someone with X's genes finds life tougher than the rest of us, so we should make special provision for X, offer changes to X's genes (when that becomes possible), and so on". That is, there is no ground here for a fatalistic conclusion that people should simply live with their genetic inheritances. Nor is there any ground for an anti-welfare-state conclusion that we should not care for people with genetically based difficulties because those difficulties are so bound up with what makes them who they are.

Now let us consider an area in which we are free to vary a basic mechanism that determines a significant consequence of parentage, in a way that we are not free to alter the mechanism of genetic inheritance. There are still some hereditary monarchies left around the world. The next monarch is whoever happens to have been born to the right couple, and in the right place in the order of their children. No-one from any other family has a chance. Let us assume for the sake of argument that it is appropriate to have a lifetime head of state, and let us confine ourselves to constitutional monarchies on the modern European model, to avoid having to discuss the evils of absolutism and of arbitrary rule. Is a hereditary system unfair? Would it be fairer to have an elected lifetime head of state, a modern-day Doge of Venice?

There is a sense in which it is not unfair to have a hereditary monarchy. No-one can say, "I was excluded from that position by the luck of my parentage", because no person could have had different parents from those that they actually had. Anyone with different parents would have been a different person.

On the other hand, it is not possible to say, "The hereditary principle is as good as any other, because we need to pick someone, and a lottery would be fair, and picking whoever has the right parents is equivalent to a lottery". One cannot say that, because it is not as if we were all there, pre-conception, waiting to be allocated our parents at random. That is, we were not participants in a lottery, so the analogy with a lottery would break down. Anyone who wanted to maintain that the hereditary principle was as good as any other, would have to find some other grounds for that claim.

Finally, the lack of a certain sense of unfairness about the hereditary principle would not prevent one from putting forward other arguments against its use.