My five favourite words: ‘Congress shall make no law …’

Looking at the great written constitutions of the world, one sees no guarantees for a quality press. They offer no constitutional warrant for a responsible press, a fair press or a balanced press. What the constitutions of Westernstyle democracies guarantee people is a free press.

It’s no oversight. While it’s possible to strive for quality, courage, balance, responsibility, intelligence, fairness and accuracy in the media, such results cannot be guaranteed. Any constitution that pretended to do so would be dishonest. Freedom comes closest to assuring qualities no one can guarantee, because freedom contains a potential for all of them.

Yet whenever freedom of the press is threatened, the rationale and justification are usually “standards” and “quality.” The media, say censor wannabes, need to be regulated because they’re not fair, balanced, intelligent and accurate enough.

Laws aiming to constrain or otherwise qualify freedom are promoted on the basis that they’re laws in good causes. The framers of the amendments to the American Constitution anticipated the magnetic allure of such Good Laws. They put wax in their ear like Ulysses to decline the siren song of Good Laws by employing the formula in the very first amendment: “Congress shall make no law … respecting religion … speech … and press.” Not “no bad law,” not “no unnecessary law,” not “no intrusive law.” Just no law. None whatever.

The days of the free press may be numbered, and with it, the days of the free world. This is how an optimist would see it. A pessimist might see it as the editor of the National Review Online (NRO) did last week. The headline on John O’Sullivan’s piece about the legislative consequences of Lord Leveson’s inquiry into the British press read: “17712013: The Era of the Free Press in Britain.”

I don’t think we need to ask where the NRO editor thinks press freedom is going, necessarily. Britain’s new press law isn’t new, strictly speaking, but it vests new powers in a regulator, a kind of nanny-monitor, under existing royal charters that also cover the BBC and the Bank of England. Someone to supervise the British media, and see to it they don’t make a mess on the carpet. As O’Sullivan describes it, “the regulator will have the power to order ‘corrections’ to be published even when no persons or groups are criticized but because he thinks that an article is factually inaccurate.” This, O’Sullivan points out, makes “the regulator … the final editorial authority in media organizations that agree to operate within the regulatory structure.”

Agree? Yes. To maintain a façade of voluntariness, the government lets media organizations opt out of the regulatory system — at a price. If news outlets undertake to assume punitive liabilities in case a complaint is lodged against them, the government will sell them the press freedom they used to enjoy just by virtue of being British.

Some will say this demonstrates a British penchant for hypocrisy, but even without a charade of voluntariness, in countries where regulation is frankly mandatory, the regulator’s ostensible aim isn’t to regulate. He’s not there to influence, pitch, obfuscate, cover up or coerce — perish the thought — but to ensure quality, accuracy and fairness.

Accuracy and fairness are governmental specialties, in case you wonder. According to the mandarins’ view, media can best rise to high journalistic standards under a regulatory regime, because officialdoms are renowned for their accuracy and fairness, whereas journalists have their eyes in the gutter, are all paparazzi under the skin and without supervision lapse into sensationalism and greed.

Half of this statement is true enough, and I don’t think it’s the first half. Officialdoms are hardly renowned for accuracy and fairness, but the greed of gutter journalism and paparazzi culture can lower the drawbridge the regulatory state requires to cross the constitutional moat into the keep of press freedom. And so, even though British Prime Minister David Cameron, a Conservative, fretted that the legislation “may be crossing the Rubicon” that separates free countries from the other kind, he succumbed to the joint pressure of his Labour opposition and Liberal Democrat coalition

In Britain, gutter journalism and paparazzi gave the state its pretext for destroying press freedom

partner, and legislated an end to press freedom in Britain.

Was it the tabloid press’ fault? Had they run amok? As O’Sullivan points out, the things the paparazzi did that sparked the Leveson inquiry, hacking into celebrity’s phones, bribing officials, were unlawful activities. Some journalists went to jail for them. There was no need for a judicial inquiry. “That was launched because Labour and Liberal Democrat parties wanted to get revenge on the conservative tabloids that they blame for their inability to keep working-class voters on the left-liberal plantation,” O’Sullivan writes.

Here’s where left and right meet. About two years ago, when Hungary’s right-of-centre Prime Minister, Viktor Orban, and his FIDESZ party pushed through a rather similar media law, the left-of-centre European Union had kittens. Luxenbourg’s foreign minister, Jean Asselborn, called Hungary’s Media Act “a direct threat to democracy.” The Greens in Europe declared the law to be contrary to “European basic values” (sic!) and the EU Commission required Hungary to demonstrate why its law didn’t contravene EU regulations. The ripples haven’t abated yet.

I didn’t like Orban’s law (and wrote so at the time) for much the same reason I don’t like Cameron’s. But with Britain following in Hungary’s footsteps, I wouldn’t blame Orban if he were smiling today.

David Cameron