We are living among the ruins of the Enlightenment project, its license for unbridled individualism, its naïve belief in the power of rational thinking and the market, its paternalism, racism and sexism all drowned, for the most part, properly unlamented in the flood of modern thought. But are we not in danger of losing, among the wreckage, much that cannot be so justifiably disavowed?
For example, freedom of expression, so long a central tenet of humanist thinking, is being washed away. In the face of supposed media power and actual media abuses, the right of free expression is becoming a mere shibboleth. In the current Communications Bill before Parliament, for instance, it is reduced to a conditional sort of business, to be held to "an appropriate level" so as "to provide adequate protection for members of the public from the inclusion of offensive and harmful material in television." At first sight a worthy enough aim but....
Take offensive material. 350 years ago, Marchmont Nedham, Cromwell's favourite journalist, explained why he became a newspaperman: "I tooke up my pen for disabusing his Majesty... and for taking off vizards and vailes and disguises." Does the Communications Bill protect the public from 'offence'; or, rather, does it not seek, in the name of some essentially middle-class world view, to make the removal of "vizards and vailes and disguises" more difficult than it ought to be? Nedham wanted to offend was, indeed, deeply offensive. Offensiveness is the touchstone of liberty and without it there is no meaningful freedom of expression.
The idea of harm is also less straightforward than it seems. 'Harm' in law means actual or potential quantifiable damage. But media 'harm', under these regulatory bodies, tends to mean something else. A television company can be fined millions for telling lies when not only is no damage proved, but the evidence for it isn't even sought. Media quango 'harm' doesn't seem to require proof that anybody is actually harmed in any meaningful way or even threatened with harm. It is a matter of assertion, of offending against what the Bill calls, "generally accepted standards".
We have come to this pass because of modern media's supposed power to do ... something ... to society. Modern media are widely assumed to be so much more powerful than the old that new levels of control are warranted. But this can be disputed. Who, for example, in the media today is more powerful than was John Thaddeus Delane, the great 19th century editor of the Times? "If England is ever to be England again, this vile tyranny of the Times must be cut off" cried one exiting cabinet victim in the 1850s. Paul Dacre and Rebekah Wade, Dawn Airey and Greg Dyke eat your hearts out.
And blaming the media for society's ills is also all too easy. For instance, are the media really a more compelling model of violence than are the enormously feted institutionalised riots that are some professional football teams? To believe the media 'causes' violence is much like believing the rustle of the leaves in the trees causes the wind.
To complain about this facile acceptance of statutory as opposed to legal or self- (i.e. industry) regulation of content is not, though, to claim an absolute right for the media. You cannot let them, as the old legal adage has it, mendaciously cry 'fire' in a crowded theatre. They mustn't defame, undercut legal due process, reveal state secrets and so on. But you don't need quangos to stop them doing that. You need accessible, effective and efficient courts.
Statutory regulation of broadcasting's content is now so well established that it has been suggested that the Communication Bill's idea for the control of commercial television's programming a Contents Board operated by the new regulator Ofcom be extended to embrace the BBC and even the printed press itself. The thought that the industry's own Press Complaints Commission might be taken over by the state has got Fleet Street in a belated tizzy. However, the basic legitimacy, in a developed democracy, of an Ofcom being in the business of regulating media content in the first place still isn't being raised at all.
So attenuated has the culture of freedom become, to question our current regulatory approach is to risk being classed as a dupe of the media barons. Or, even worse, it is to be dismissed as a swivel-eyed loony libertarian. Not since the nationalist MP Willy Hamilton argued for republicanism in the 1950s has there been a lonelier public niche to occupy. But claiming regulation of content is either the business of the industries involved or the courts is not to give up on regulation nor to assume reform is unnecessary. It is merely to deny ministers and their quangos power over content.
In 1695, Edward Clarke MP summed up this position when he spoke in Parliament against the renewal of the communications legislation of the day, the Printing Act. In essence, his arguments, provided to him by his friend the philosopher John Locke, were simply that a special act for the control of print was superfluous in a free society under the rule of law. His was, though, no extreme libertarian position. Clarke and Locke were merely restating what was to become accepted, at least as far as print was concerned, as the classic liberal view. The Printing Act was unnecessary because, as Clarke told the House, the weight of existing law "makes this or any other Act for the restraint of printing very needless."
It was needless because the laws of libel and sedition (to name but two) were sufficient to control the press. In a liberal society that was, Clarke successfully claimed, enough. In practice, for the press, this meant that there should be 'no prior constraint' no censorship or licensing. Of course, in Clarke's day and for a century and more after, taking the consequences for publishing material offensive to the law involved fines, the stocks and even on occasion the hangman's noose. A free press was not an unregulated one it was an uncensored one. The difference is no small matter.
But even this limited privilege did not automatically apply to other forms of expression. The stage, at the very moment when the doctrine of 'no prior constraint' was being articulated, was being subjected to the control of the Lord Chamberlain, whose stifling embrace it was not to shake off until 1968. At the beginning of the 20th century, films were instantly subjected to the control of the ancient Watch Committees and it was inevitable that the British state would assert control of the new medium of radio in the 1920s. Press freedom, though, was echoed in the compromise that was the BBC. But with commercial broadcasting direct statutory controls again proliferated, offering chilling 'guidance' as to what is acceptable programming. Today, culture ministers are happy with the open exercise of such power, interfering with everything from the suitability of broadcasting schedules to the quality of digital channel programming plans.
It's probably already too late to be saying this, but if media law is inadequate and its not hard to agree that it is then fix the law. Make it accessible. Add what you think ought to be added privacy, say. Restrict, if you think anti-monopoly legislation doesn't cover it, media ownership. Define, if you must, what you mean by obscenity and come up with a 21st century version of blasphemy. (I'd rather you didn't but that would be better than all this babble about offensiveness and standards.)
If the industrial bodies are toothless, let them have more bite. For example, there's a proposal from the Big Issue and its fellow alternative print publications to expand the PCC into a Journalism Council along General Medical Council lines, taking away from the quangos their power to mess with broadcast news. This might not be a very good idea but, unlike the Contents Board, it would not so quickly have Clarke revolving at spin cycle rates in his grave.
Do all or any of this but do not, through inattention and amnesia, give some Star Chamber of a Contents Board oversight of the media. Don't let liberty of expression disappear any further into the maw of the quangocracy. Three centuries ago, for Milton, free expression was the right "above all liberties". It is hard to know why that is, apparently, no longer the case.
