All free speech systems are works in progress: interview

Craig LaMay is an associate professor of journalism at the Northwestern University. He is a former editorial director of the Freedom Forum Media Studies Center and editor of Media Studies Journal; and a former newspaper reporter. LaMay's articles and commentaries have appeared on New York Times, Wall Street Journal, Washington Post, Newsweek, Communication and the Law and a number of other media outlets.

LaMay has published several books on journalism and mass media of which we can name Journalism and the Problem of Privacy (2003), Commercial Transformation of the Nonprofit Sector, with Burton Weisbrod (1998) and Abandoned in the Wasteland: Children, Television and the First Amendment with Newton Minow (1995).

Prof. LaMay joined me in an exclusive interview to discuss the constraints of journalism in the United States, freedom of speech in the EU, the performance of local magazines as opposed to the national news outlets and the gradual disappearance of traditional media with the emergence of new internet-based technologies.

What follows is the complete text of my interview with Prof. Craig LaMay of the Northwestern University.

Kourosh Ziabari: Dear Craig; there's a belief with regards to the mass media in the Western countries in general, and the United States in particular, which is undisputedly accepted by the international community: the widely-accepted belief is that the Western media are unrestrictedly free to publish whatever they want, to publish the viewpoints of the opponents of the government, the political dissidents and anti-governmental activists, without being harassed. Is it true that the mass media in the West are absolutely free to publish whatever they want? Isn't there any implicit pressure on the media to publish the news and analysis in a way which is favorable to the interests of the government?

Craig LaMay: That belief is overstated.  In the United States, for example, it has always been the law that restraints on publication, gag orders, are facially unconstitutional, and where they occur they get an immediate judicial review.  Nonetheless, it is also the law that some materials are subject to what we call prior restraints, or injunctions against publication.  Those materials fall into three broad categories: obscenity (which is subject to community standards, and thus what is 'obscene' in Alabama might not be so in New York); incitements to violence, but only when violence is likely and imminent, not when speech is mere advocacy, even advocacy that the government be overthrown by force; and risks to national security.  The last of these is the most contentious for journalists, since even benign governments are apt to see national security threats where there are none.

In Western Europe, there is no rule against prior restraints even if the principle against them is generally accepted.  So information that is libelous or invasive of privacy can be enjoined before publication.  Particularly notable is the high regard that EU law, and many national laws, have for personal privacy, not only for private citizens but also for celebrities and public officials. 

As for implicit pressure, there's another matter. In any media system - ours or yours - it is much more that state control that determines what is published. So do social norms (ie, ethics, or cultural judgments about propriety and personal dignity); markets (ie, the decision about the costs of gathering and publishing some stories that might be hugely expensive to report in terms of personnel and legal costs, of interest to only a few people, the possibility that if a piece offends readers it might lead to loss of subscription, revenue, etc.);  and last of all system architecture (ie, how you actually build your system to support free speech, eg, the Internet as a platform that anyone can use as opposed to a television station, where prerogatives belong to the owners).  As you can imagine, each of these is linked to the other - none works entirely independent of the other.

KZ: In the majority of European countries, there are laws which restrict the publication of materials, articles, news and op-eds about Holocaust. Much of the journalists and academicians who publish materials which dispute the veracity of Holocaust get incarcerated immediately and have their respective media outlets banned or penalized with punitive measures. Isn't this a violation of freedom of press and information on behalf of those who introduce themselves as the pioneers of freedom of speech?

CL: Interesting question.  From the American point of view, the answer would be yes. But law is never abstract; it is always born of experience.  The natural state of Europe for the last thousand years has been war, under Charlemagne, then Napoleon, then Hitler.  The core purpose of the EU is to prevent future conflict, and in that system, and given the European experience with hate speech, it is hardly surprising that nation states from France to Austria would ban speech directed at certain minority populations.  I get that. BUT, this does not explain the virulent anti-immigrant and racist speech you find all over Europe at any football game, for example, but also in public discourse. Sarkozy's expulsion of the Roma last fall was the largest mass expulsion in Europe since the Holocaust, and yet it seemed to trouble few Europeans. The rise of anti-immigrant parties all over Europe is also a concern.  So the problem the Europeans have, it seems to me, is that they have chosen to ban some hate speech directed at some minorities, but not all. I would say, however, that ALL free speech systems, including the United States', are works in progress.  The ideal of Europe regarding speech is contained in Article 10 of the EDHR, but it is far from realized. 

I have to say also, as someone who has worked in developing media systems and post-conflict societies for many years - from Guatemala and Indonesia to Serbia and Chile - that it both unrealistic and chauvinistic to assume that every media system should look like, say, ours.  It shouldn't.  The British system is very different from ours, for instance, and in ways works better than ours. And vice versa.

KZ: What's in your view, the main difference between the local newspapers and magazines, with the national/international media outlets? Aside from the extent and area of their coverage which varies from the local media to the national and international media, what are the major differences in the mechanisms of performance, distribution of facilities and approaches to the current affairs in these media?