Could American press ever be subject to a stateside equivalent of the Leveson Inquiry?
AP Photo by Kirsty Wigglesworth
Rebekah Brooks, the former News International chief executive, leaves a London court where she faced charges linked to alleged bribery of public officials.
The world watched the British press face the Leveson Inquiry, but could investigators’ prying eyes fall on American media anytime soon?
November’s Leveson Report not only demonstrates the stark differences between the British and American press, but also lays bare the implications that a rapidly changing media has on attempts to regulate it.
A similar full inquiry in America is unlikely, considering First Amendment press freedoms and other rights, both statutory and at common law.
“I think Leveson is peculiarly British, growing out of a long history of press regulation, myriad class issues and the special and outsized position of media proprietors in Britain,” Guardian columnist Michael Wolff said. “I don’t see it being applicable or even comprehensible in the American context.”
Despite this, some features of the Leveson Report offer lessons on the legal challenges facing the shifting American media.
The Leveson Report
The British government launched a lengthy investigation into national journalistic practices after evidence of phone hacking by tabloids rocked the media landscape.
The investigation culminated in the Leveson Report, which recommended that the British parliament create a new framework of press regulation and that the newspaper industry engage in more stringent self-policing.
Journalists from News of the World and other British tabloids were accused of hacking into voicemails of royals, celebrities and politicians. When these accusations were revealed in 2011, Prime Minister David Cameron announced a public inquiry to investigate the matter.
The Leveson Inquiry, named for its chairman, Lord Justice Leveson, “examined the culture, practices and ethics of the press and, in particular, the relationship of the press with the public, police and politicians.”
This examination led to the first Leveson Report, a nearly 2,000-page tome recapping months of testimony and proposing changes to British law. The second Leveson Report has not yet begun but will focus on the specific culpability of News International, the Rupert Murdoch-owned business that published News of the World and the other newspapers implicated in the phone hacking.
The report recommended a new, independent regulatory body to oversee the British press, one with investigative and sanctioning powers.
It proposed this body be created by statute, which would be the first British legislation imposing a legal duty on the government with regard to the freedom of the press.
The report made subsidiary conclusions, including a desire for increased source transparency, a whistleblower hotline and greater privacy for individuals.
Differences between British and American press
After the report was published, British politicians were publicly divided on whether and how seriously to implement its recommendations. Prime Minister Cameron opposed the idea of regulatory legislation, but Deputy Prime Minister Nick Clegg, a high-ranking official in Cameron’s coalition government, and Labour Party leader Ed Miliband supported the Report’s proposals.
That further regulation of the British media is seriously being considered illuminates a significant difference between the American and British press.
“In the U.S. it’s unthinkable: Press regulation of any sort would inevitably trample sacred freedoms and unleash state apparatchiks to badger and stifle the media,” wrote Edward Wasserman, dean of the Berkeley Graduate School of Journalism, in The Huffington Post. “But in Britain the notion that news media need grownup supervision is widely held and periodically attempted.”
Wolff, who also authored “The Man Who Owns the News”, a Rupert Murdoch biography, takes an even more blunt view of the American press.
“A free press means an unregulated one — no rules, no standards, not even the presumption that in an ideal, perfectly balanced, better-nature world, there should be a higher morality,” he said. “Here’s the American view of democracy and scurrilousness: a free press means tough luck. It exists, deal.”
Wolff frames the difference as either having a truly free press or subjecting the press to ever-changing, murky, conflict-laden laws and regulations.
“There is a free press, which (at least in America) is as near to an absolute status as its defenders can make it, whose downside we accept or endure because we believe in its upside — that is, the importance of another independent voice (no matter how raucous or inconvenient) in the great democratic debate,” he said.
“Or, there is a broader and infinitely more complicated sense of ritual and propriety which necessitates, among other problems, a constant battle over the logic of the standards themselves and the internal contradiction of nodding toward free while regulating it . . . not to mention the inherent problems of the press being regulated by the people who are most often its targets.”
Effects on the U.S.: Tabloids and the Internet
Despite these differences, might the fallout from these unethical practices outlined in the Leveson Report otherwise reach the United States?
Celebrities who are often the target of tabloid journalists certainly have the incentive to protect themselves from unethical tactics like phone hacking.
Harry Potter author J.K. Rowling testified at an inquiry hearing that the British tabloid press hounded her, including one journalist who secretly placed a note inside her daughter’s backpack. When Cameron expressed hesitance at the report’s proposals, Rowling wrote an op-ed in The Guardian saying she felt “duped and angry.”
Tabloid tactics have drawn the attention of American celebrities, too.
“If they were doing that over there, you have every reason to believe that they were doing that here as well,” actor Alec Baldwin told British magazine Spectator Life. “There is no market that is bigger for media outlets in terms of the tabloids and generating trash than the U.S. . . . It’s a reasonable question to ask if they were doing that [in America] and to look into it.”
The Leveson Report spans four hefty volumes, but what might be most relevant to American media is what it said about the Internet — or more tellingly, what it did not.
In slightly more than one page, the report addressed “the relevance of the internet” and the role new media plays in the press.
Taking a somewhat combative tone, this section begins, “Many editors and commentators have argued that the burgeoning of the internet is likely to render irrelevant much of the work of the Inquiry even assuming that it has not already done so.”
The Report attacks this assumption on two grounds. First, it distinguishes the Internet from the press by saying “the internet does not claim to operate by any particular ethical standards, still less high ones. . . . The internet does not claim to operate by express ethical standards, so that bloggers and others may, if they choose, act with impunity.”
Second, it says there is “a qualitative difference” between content online and “on the front page of a newspaper.” Because of this, “people will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy; it need be no more than one person’s view.”
The report attempts to neatly divide print media from online journalism. Paul Bradshaw, a professor of online journalism at City University London, told The Guardian that this division was “naïve, but not uncommon.”
Naïve or not, the distinction was explained in a mere page out of 2,000. Other commentators see this sparse treatment as evidence that the legal landscape is ill-equipped to handle the thorny questions that arise as traditional print media continually cedes influence to varied forms of new media.
The report appropriately scolds News International’s tactics but barely scratches the surface of bigger questions.
“Leveson deals with the nefarious ways of publishing personal information; it deals with the fallout of incestuous relationships run from the heart of government; and it deals with the personal cost of people crushed by journalism-as-showbusiness,” said Emily Bell, director of Columbia’s Tow Center for Digital Journalism, in the Guardian. “What it cannot deal with is the regulation of the press in the 21st century.
“What is the solution? To put ‘the internet’ within the scope of Leveson would be as daft as it would be futile, and to regulate the press further, without having a broader definition of who ‘the press’ might be, is a recipe for irrelevance.”
This consequence of the Report concerns Jeff Jarvis, a journalism professor at the City University of New York and former critic and columnist. Jarvis told Britain’s SkyNews that any new laws intended to regulate traditional print media could easily encompass bloggers and new media reporters.
“I have a blog. I publish. Is this going to call for regulation of me? Is this going to call for regulation of people across borders?” Jarvis said. “To use this hysteria to now justify regulation of the press . . . is, I think, a very dangerous thing for speech as a whole.”
If American laws are to properly account for the influence of new media, they must consider how American news media has evolved to this point, argues Wasserman, the Berkeley dean.
“The roots of so-called press responsibility in this country lay not just in the fractured market but in the rampant spread of local newspaper monopolies over the last 50 years,” he said. “Newspapers — where the culture of today’s news business was incubated — no longer viewed themselves as needing to outgun rivals for market dominance.
“Instead, they focused on building legitimacy as civic benefactors, sought to keep readers and advertisers loyal and content, and placed a greater premium on restraint than on the aggressiveness that had marked the previous, competitive era.”
If new media becomes significantly unlike traditional media, something akin to Leveson might be appropriate in the United States, Wasserman said. “The question now is whether in the digital age, marked by real-time news scrambling, the media are moving toward a new hypercompetitive epoch, and a corresponding impatience with patience and accuracy. If so, self-regulation [may become] a prospect to be addressed on our side of the Atlantic as well.”
And this relevance could affect not just the legal landscape but the very culture within media as well.
“If newspapers have got any sense they will realise that the party is over. The old arrogant, closed culture is no longer going to win them the trust and attention of the public that will make them valued,” blogged Charlie Beckett, head of the media and communications department at the London School of Economics.
“So in that sense Leveson really matters. Not because of what the judge says in particular. But because this is a wake-up call, an historic moment when newspapers can [choose] to live in the past or remake themselves and the way they do their vital work of journalism for the future.”
A government-sanctioned inquiry into the American press may never happen, but certain qualities of the Leveson Report might well illuminate the path forward. American courts are increasingly considering just how broadly to define the term “journalist.” Do bloggers qualify? What about independent individuals running their own sites?
Summing it up aptly in both form and substance was Jarvis, who tweeted shortly after the Leveson Report’s release: “Our first amendment bars legislation over the press. Leveson creates precisely that. No matter how well-meaning the law and venal its objects, this is a sad day for speech. I still worry about where the lines are drawn. Who is the press? Aren’t we all?”