So Leveson has written his report, and as I write controversy is erupting about whether we should have a state-regulated press - but the reality is the press was never free.
As much as I love papers - the reason I have gone back into journalism - the fact remains that the explosive investigations you see in telly like State Of Play hardly happen. At least not in the way most people in the industry would want.
Why? Because reporters don’t have the legal protection, or the resources, to expose wrongdoing on a huge scale, or on a regular basis.
There is no enshrined protection for free speech in the UK, and the newspapers themselves are on many occasions fighting against market and financial pressures from the outset.
Anyone who thinks there is free speech in the UK is wrong - and you only have to think about what free speech really is to realise that. We often imagine free speech is something noble, like being Jimmy Stewart in Mr Smith Goes to Washington, and every time you exercise free speech it is some tub-thumping rally-raising speech which borrows deftly from Henry V. Actually it means we allow racists, homophobes, and all sorts of unsavoury types to say what they want. This is touted but not supported. For instance we have no real written constitution, and what we do have, the European Convention, reads like the morals of Spiderman - as written by a council employee:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. (my use of bold)
With great half-arsed power comes great responsibility indeed. In fact for free speech to abide, we need to let scummers have their say, safe in the knowledge we can say something back. But instead we have introduced a raft of laws against “inciting” hatred. The law seems to decide that people are not intelligent enough to have their own common sense, and that for some reason we cannot take whatever a loony says with a pinch of salt – when on the contrary most of us do.
In America, the freedom of speech is protected by their constitution’s First Amendment. This specifically includes the press, putting off people who might want to hammer newspapers in court without a damn good reason. The claimant has to prove that the newspaper was both malicious and reckless in compiling its report. This means the doors are opened for stronger investigation by reporters, and fosters an image of reporting synonymous with prestigious accolades such as the Pulitzer Prize. And unlike the famed ‘libel tourism’ which takes place on our shores – because the laws are so stringent, the rewards largely uncapped and the onus entirely upon the defendant - in America, even if you win, you have to pay your lawyers.
Now I’m not saying this is some sort of utopia. Court cases have had to be re-scheduled and lawsuits have raged as a result. Roy Greenslade put together an attack on the American press in his blog on the Guardian website to illustrate this very point. He looked at how a paper in South Carolina, The State, seemed to point the finger of blame at a man before a trail had even gone ahead. However, a reply from an American reader said the example he used was a rare exception, rather than a rule for US papers.
Contrast this with the press in the UK. There isn’t the support in law, and libel lawsuits are rife as I mentioned. In fact, libel tourism means an American can take out lawsuits because an article, okay in his own country, has landed on our shores. Now I’m not saying that we should do away with the Defamation Act and the Contempt of Court Act – I think they have their merits for obvious reasons - but it means papers have more than enough to contend with. If the law does its job we shouldn’t have to worry.
This on its own would be fine, but the “chilling effect” of the law, and the power of the markets, can make things even more difficult for some of our country’s newsdesks. The centrepiece to Guardian reporter Nick Davies’ book, Flat Earth News, lays bare the unwritten rules which often constrain the nationals. Given half a chance, any right minded desk will break those rules where they can, and every day most of them will try to. It is fair to say that every day there will be some that succeed, but that doesn’t mean we can ignore this undue pressure. Why? Because it comes from Joe public – and I count myself in that number too. People eager to slam the press if they get it wrong, and happy to buy only what they want to read. I’ve certainly been guilty of those two things throughout this whole enquiry - jumping on the bandwagon, and reading the reports I want to believe – but this is the effect it has; the unwritten rules:
1) Run cheap stories – stories which are quick to churn out and safe in the sense they won’t cripple the paper with a lawsuit.
2) Select safe facts. Papers are often put off if an “official” source denies facts, even if it was a report of men, women and children being herded into a room and being shot by American troops in Iraq.
3) Avoid the electric fence – in other words don’t upset those with the power to disrupt media.... such as the law.
4) Select safe ideas which don’t offend popular opinion.
5) Always give both sides of the story; even if what the other side says is nonsense and clearly flies in the face of the facts.
6) Give them what they want – even if it is putting Beckham higher in the run of news than deaths of soldiers in Afghanistan
7) The bias against truth – there is not the taste for stories which have a mundane basis, and require sifting various facts. Often pieces are hooked around big events, and photo-friendly stories, rather than careful nit-picking through the facts to deliver a strong overview.
8) Give them what they want to believe in – keep up the revenues. Did your paper come out too strong against the Iraq war? Circulation suffering? Better reverse that position then, like the Daily Mirror.
9) Go with the moral panic. Enough said.
10) Ninja turtle syndrome. The argument is succinct. Ninja Turtles are rubbish. But if everyone has one you don’t want to be left out – the same often applies to news stories.
Now people and papers do fight their way through the gaps. They expose wrongdoing time and again, but not on the same regularity as any reporter, editor or proprietor would want deep down. The relationship can work as it is – the paper watches the parliament and the law, the law watches the papers and parliament, and parliament is free to publicly criticise the law and the papers. But, as the inquiry has shown, no two should be too close to one another.
If the law and Parliament drive the news agenda, next time your paper is delivered, it might not come in a plastic cover, but a straightjacket.