Freedom of the press?

I admit to being a little bit puzzled by the way the Muslim cartoons controversy has been portrayed by so many across the world as a freedom of the press issue. The freedom of the press is a legal right, and I haven't seen anyone, anywhere, suggesting that the newspapers in question didn't have the legal right to print those cartoons. In fact, it's quite clear that they did have that right, despite the fact that several of those countries have more limitations on press freedom than are comfortable for many Americans. This makes the question far more one of whether it was wise or prudent for these newspapers to print the cartoons, and it's there that the issue steps out of the realm of black and white and into various shades of grey. I mean, it's perfectly legal for me to walk up to strangers on the street and tell them how ugly they are, too, but I think we'd all agree that if I did that, I'd be...what do they call it? Oh, yeah, an asshole.

But people seem to want to debate the freedom of the press, so fine, I'll bite. I grew up an American, and as such, I always had a typically knee-jerk American view of press freedom: invulnerable, absolute, and most of all, unquestioned. I even maintained this view well into my time in Canada--nothing but nothing should ever get in the way of the media reporting on whatever they wanted, whenever they wanted. If something did, well, that was just an example of the inferiority of the countries that allowed such a horror to happen. But then came the Tale of Two Inquiries: the Valerie Plame inquiry in the United States and the Gomery inquiry in Canada. Happening at around the same time, and both involving an investigation into potential misconduct by the federal government, they provided a fascinating study in contrasts that shook the very foundation of my neat little ideology.

First, Canada. Openness was regarded as paramount in the Gomery inquiry, in large part because secrecy had been a contributing factor to the corruption being investigated. Testimony was completely public, and was not only reported on in the media, but broadcast whole-cloth to Canadian living rooms. However, a few times throughout the inquiry, someone was asked to testify when their own trial was imminent, and it was clear that the person's right to a fair trial might be jeopardized by his Gomery testimony. In these cases, the judge imposed a temporary publication ban on anything relating to these pieces of testimony. What this meant was that reporters were still allowed to be present for the hearings, but they weren't allowed to publish their stories until the ban was lifted. An imposition on Canadians' right to a free press? Absolutely. But it was a temporary one, and with time all of the facts came out--there was no way they couldn't, with so many journalists in the room.

Contrast this with the U.S.-led Plame inquiry, which was conducted entirely under lock and key. National security concerns were cited as the reason for not making the information publicly available--and given that the inquiry involved a CIA operative, those seemed at least as justified as Gomery's concerns about fair trials. But because free speech is ideologically absolute in the U.S., there was no way to prevent the offending information from getting out other than by sealing the entire inquiry away from the public eye, permanently. The flaw in this solution would seem obvious. Cloaking the information results in more, not less secrecy, and less, not more information being transmitted to the public. But the Americans didn't seem to mind--at least no journalists had had to hold their tongues for a few weeks, right? The ideology of the freedom of the press was maintained, so who cares whether there was anything to report about?

Are there problems with the Canadian solution? Well, yes. If you step back from pure ideology, you'll see that there are real, practical problems with publication bans. In an increasingly digital world with a public, internationalized internet, a publication ban ties the hands of Canadian journalists without actually preventing the information from getting out for the duration of the ban. Since Canadians were still allowed to attend the hearings during the ban, the testimony could easily be passed on to people outside of Canada, who could--and did--publish it on blogs where internet-savvy Canadians could read it. Heck, I read it myself. There probably weren't enough internet-savvy Canadians in the spring of 2005 to really make a difference to anyone's fair trial, but will that still be true in five years, ten, twenty?

What it comes down to is that in a worst-case scenario, this kind of development results in a failure to protect the people the ban was imposed to protect. And while this new Canadian has seen the light and is now willing to see the freedom of the press temporarily suspended when it's absolutely necessary, I'm not willing to see it suspended for a sham. Worse than a sham, really--what the publication ban ended up meaning was that Canadians did see reporting on the banned testimony, but only from the perspective of a handful of conservative American bloggers, while the only people who actually had enough knowledge of Canada to interpret the situation were obliged to sit on their hands. That was hardly the intention. I therefore hope that publication bans will soon go the way of the dodobird--not for ideological reasons, but for practical ones. On the other hand, if publication bans are replaced with a solution that ends up being identical to the U.S. solution of not allowing the information to be transmitted to reporters in the first place, then that will be far more damaging to the public's right to know than the original conception of the publication ban was. I'd like to think Canada will be able to come up with another made-in-Canada solution that actually works in the digital age. Here's hoping.

While I may have been born an American and injected with American values throughout my early life, when confronted with real-world examples, it was hard not to see how illogical an absolutist ideology of the freedom of the press can end up being in practice. What matters in the long run--what has to matter in the long run--isn't the noble ideals behind a right, but how that right actually works within a society. And when the ideology behind the freedom of the press is regarded as more important than the actual transmission of information to the public, the U.S. constitution becomes nothing more than hot air and pretty words.