23 Jan 2012.
Hirst On Marketplace Ideology.
730reportland: 08 Nov 2011, Melbourne, retired judge Ray Finkelstein `hosts` the Australian Media Inquiry. Finkelstein is assisted by journalism academic Matthew Ricketson.
Ray`s first `guest` is Martin Hirst who teaches journalism at Deakin University. Welcome to the `show`.
MR FINKELSTEIN: The best student should always read what the person supervising publishes. The topic of the paper is briefly summarised as dealing with free speech and hate speech. I am interested to know, in the first place, what you understand as being the underpinnings of the notion of free speech? This is a question without notice.
DR HIRST: It is something that I have thought about, obviously. I think that the underpinning principle is obviously the right of people to free expression of opinion. However, as I opined in that paper, I think that there are also rules of what I would call civil discourse that perhaps need to be observed around that.
I also make the point there that I don`t think free speech extends to the freedom to make racist comments or vilifying comments in relation to minority groups or homophobia. Those kinds of issues, to me, fall far outside the ambit of free speech.
730reportland: Hello Andrew Bolt.
MR FINKELSTEIN: Can I come to what might be the qualifications to free speech in a second. It is obvious from your paper that you think that free speech is a very important right, and I am using the word “right“ in its loosest sense, I suppose. Are you able to tell me why, for what reasons, free speech is such an important commodity?
DR HIRST: I think it is what I would call a universal human right, in that sense, I guess. I suppose that is the bottom line, really; it`s a human right in that regard. I think your use of the word “commodity“ is an interesting one, because I think, in a concrete sense, that highlights one of the key aspects of this Inquiry, which is the idea of a marketplace of ideas.
MR FINKELSTEIN: Is that a view to which you subscribe?
DR HIRST: No, I don`t. I think there`s actually market failure, and I`m writing something on that at the moment which I will be presenting to you. It`s not quite finished, but since you are still taking submissions, I will endeavour to get that to you fairly quickly.
I do make the argument in that piece that I`m doing that I think the marketplace of ideas rhetoric, which is, if you like, the rhetoric of liberal democracy and representative democracy and capitalist economy and capitalist society, is a flawed model in that the marketplace is not a level playing field. It doesn`t give everybody the same rights of access. I think it commodifies the notion of public interest, which is something I am also quite interested in exploring, because I think that our definitions of public interest are actually based on ideas of the market.
If you look at the legislation around broadcasting and telecommunications, for example, with the public interest test, that is often based on looking at economic benefits, so the public interest is defined in those terms and citizens are defined in that regard as consumers rather than as an expression of political ideas.
I think that there is a philosophical debate to be had about the idea of the marketplace of ideas and how relevant it is, and if it is working. My argument would be that it is not working and that we are in a situation we are in today, in terms of the collapse of business models and decline in public trust in journalism and in the news, as a result of failure of the market as it is currently established.
MR FINKELSTEIN: There are plenty of issues that you have picked up. Can I deal with a couple of them discretely.
When you speak about the marketplace of ideas, which I suppose is very fashionable, because the United States Supreme Court has picked up on that idea now for almost 100 years, do you mean the same as the jurists when they speak about the marketplace of ideas – that is, if you have a lot of discussion about controversial topics, the more discussion there is had, the easier it is that those who are the listeners can discern the truth, or discover the truth?
DR HIRST: Yes. I think that is definitely the theory, and definitely the ideal of the marketplace of ideas, but I also think that it is a marketplace in the sense of the commodification of ideas, particularly in relation to news, which is a commodity. It is commodified in the current society, and I think that distorts issues of access and balance, if you like.
MR FINKELSTEIN: Assume I was minded to jettison the marketplace ideology behind, for instance, the marketplace of ideas and opt for some other justification for free speech. Can I take it that, from what you said right at the beginning as to treating free speech as a human right, you would regard that kind of approach to free speech as more important or more relevant than the marketplace of ideas approach – that is, it has just got to do with individual liberty?
DR HIRST: I think it is more than that as well. In the paper that I`m preparing for you at the moment I talk about this in terms of the public interest, the underlying broad collective public interest as being one of the key cornerstones of freedom of speech. The ability to actually have a full and frank debate about issues of importance to citizens should be the reason why we encourage an exchange of ideas. It is to do with, I suppose, our ability to be informed citizens and to make informed political choices about issues of public importance.
MR FINKELSTEIN: That is to suggest that free speech and free speech through the media has a particular social role to perform?
DR HIRST: I would argue that it does, yes.
MR FINKELSTEIN: I`m actually trying to nut out whether they are the views you are expressing.
DR HIRST: I do think there is an important social role in the media in that regard, absolutely, because we live in a mediated world and the only way that most of us can participate in the public sphere, and in civil political discourse, is through the media. I guess some of the issues that you need to consider in this inquiry are the fact that the rise of social media and convergence technologies have now created, if you like, a different set of expectations and set of rules around that kind of thing. Obviously through blogs and social media, a lot more people now are able to have some kind of participatory voice, not necessarily in the mainstream media.
MR FINKELSTEIN: Your concept of public trust, does that carry with it the idea that the media, being as broad as you like at the moment, including non-mainstream or, if you like, mainstream media, has some kind of responsibility in the manner in which it goes about its business of informing the public of news or newsworthy information?
DR HIRST: Without a doubt there`s a responsibility attached to that, of course. I think rights do come with some responsibilities. The exercise of rights has to be done in a responsible way, and I think in terms of the media`s role in society today, you could actually argue that the mainstream media has a dominant role in terms of the circulation of ideas. Therefore, the responsibility on the news media is to actually present a broad range of ideas and to allow for that civil discourse to take place.
I would actually argue that it doesn`t do that as well as it perhaps could. I think there is in fact quite a limited range of political opinion that gets displayed across the media. I am not here to bash the Murdoch press, but I think across the board in the mainstream media there is what I would call a limited variety of speaking positions. There is a limited view of what are permissible views in terms of what`s actually picked up and promoted through the media.
If you look at, for example, the rostered columnists across all of the print media, there are very few people in that roster that actually argue outside of a kind of narrow consensus of centre-right opinion, I would argue. There is not a great deal of what I would call strong left opinion in the mainstream media.
MR FINKELSTEIN: That sounds like a complaint about lack of diversity?
DR HIRST: I think it is. I think there is a lack of diversity. Particularly in terms of opinion, there is a lack of diversity.
MR FINKELSTEIN: Can I take up a couple of issues out of what you have just been saying. You mix together notions of public trust on the one hand and rights and obligations on the other. Most lawyers will understand that if there`s a claimed right, there is a corresponding obligation. Legal philosophers have written much about that topic. If the press have an obligation, what is the corresponding right one then has which gives rise to the obligation? Is it the right of free speech?
DR HIRST: I think it is the exercise of that right of free speech which they have, obviously, and I think, as I have said earlier, it is a flawed model and one that certainly is worth debating. People have said previous to me that the right of free speech in terms of the mainstream media is the right of the proprietor or the owner, and that freedom of speech is to those who own the press.
I think there is some truth in that. In the marketplace of ideas, if you have a commodified public sphere, as we have, then there is actually, if you like, a commodified right that it exists within the mainstream media. The obligation that goes with that, I suppose, is to exercise that responsibly and honestly. So it is about the truth, it is about the promotion of public interest and it carries with it the obligation to act in that kind of manner.
MR FINKELSTEIN: The types of ideals about which you are speaking are ideals which a society might demand, or expect rather than demand, but which society may not have a right to enforce, if you understand the difference. You have got ideals, everybody has for themselves a personal set of ideals which they strive to achieve, but you don`t get punished if you don`t achieve them, it is just that you fail either in your own eyes or somebody else`s eyes. Do you see the distinction I`m getting at?
DR HIRST: Yes, I do. I think the public does have a right to expect honesty and truthfulness and a variety of opinions through the media.
MR FINKELSTEIN: Why does it have that right?
I understand that it expects that.
DR HIRST: Editors and journalists will often fall back on, “Oh, we`re doing this in the public interest.“ That is an excuse, in my view, sometimes, which covers a multitude of sins, if you want to go down the track of journalists raising this idea of “We did what we did in terms of the public interest.“
If the media was claiming to have this role of defending the public interest – being the watchdog, being the Fourth Estate- if it is claiming those rights for itself, then I think the public, the citizens, have a right to expect what they are getting from their media is living up to those ideas, and I think sometimes it doesn`t.
730reportland: Hirst is way too gentle here.
The embedded media, who romanticise they are
“the gate-keepers of the truth“, have often acted as
gate-keepers “from“ the truth.
Topics, Labor, Greens, Science.
Embedded media self interest is often dressed up as public interest. Tit for tat word wars are rather easy to find between Limited News and ABC webpages. A never ending game of ego driven `gotcha`. Followed by robust denial or fake hurt. The vast majority of this is `not` news. Just blow-hard self interest.
I exclude Media-Watch.
MR FINKELSTEIN: What kind of machinery could ever be put in place to see those ideals achieved which wouldn`t smack of censorship?
DR HIRST: I think that is a difficult question.
I think it is for you to answer, judge, but–
730reportland: Do I smell chicken?
MR FINKELSTEIN: I`m going to ask as many people as I can for help.
DR HIRST: On regulations, I do have a view on that, and I think my view is that what we are actually experiencing now is something that I have written about, and I call it the “techno legal time gap“, to use a piece of jargon that I quite like. What I mean by that is that through convergence and through the growth of media technologies, such as social media, the fact that now an Apple iPhone can be a production suite in and of itself with user-generated content, all of that kind of stuff has created opportunities for new things to happen that we couldn`t do before.
DR HIRST: For example, newspapers or media organisations that go on to Facebook and download without permission photographs of young teenagers killed in an horrific car crash when the family has requested privacy, and the media says, “It is in the public interest, we are going to go and take those photographs“, without any regard to the consequences of their actions. They would argue Facebook is public, but it`s not, really. There is a whole bunch of stuff that sits around that – for example, copyright, where does that sit? It actually sits with Facebook. Is it the situation that people put things on Facebook expecting it to be published and to be used in that kind of way? It has created a whole new set of problems.
730reportland: The embedded media stalking children on `social` websites. So far the stalking has not been `Limited` to children, not that that`s okay. Tweeters, bloggers and tram drivers have already been stalked by Limited News so far. I suspect their list of future targets is growing, not shrinking.
Stalking? No Surprise Here
DR HIRST: For example, journalists are being sacked for using social media to express personal opinions. The news organisations take a dim view of that. That has happened recently in Australia to at least two or three people. A whole range of situations like that that now exist, and the law and the regulatory systems and codes of ethics are not keeping up with that. I think that in terms of what needs to happen, we need to actually have a look at what`s going on here and I think there is a need to probably adjust some rules and regulations. For example, is there really any point any more to licensing broadcasters when there is no longer a shortage of spectrum?
I think Bob Brown`s submission raised the idea of licensing newspaper owners. I would actually argue that you should look at taking away any kind of licensing regulation around broadcasting because, in fact, the argument for that, which is spectrum scarcity, no longer exists.
730reportland: Hirst misses the `licensing` part of Brown`s point here. Finkelstein follows. Brown has mentioned a `fit and proper person` type of provision with licensing. That is, `No Criminals Allowed`. Murdoch and News of the World, Conrad Black, or Alan Bond may not qualify.
MR FINKELSTEIN: There might be a different argument for regulation, though, of airwaves, which is not so much a scarcity argument, but it might be just to have order so that not more than one person broadcasts at a particular frequency. There might be room for regulation to allocate a licence, but your point is that, presumably apart from allocations, “This is your bit of the airwaves as opposed to somebody else`s bit of the airwaves“, you think that broadcasters should be treated in the same way, so far as regulation is concerned, as traditional print media? Is that a fair summary?
DR HIRST: I think the principle has to be one of platform neutrality- level playing fields, if you like, across different media platforms. We are still grappling with the idea. If you are publishing online, are you still a newspaper? The Seattle Times, for example, no longer has a print edition, it only exists on the Web. Is it still a newspaper? Those kinds of issues I think are actually what is really current in terms of needing to be settled.
MR FINKELSTEIN: Can I just come back to some of the issues that you first discussed.
I am interested in your view about a failed market for ideas. I think you describe it as a failed marketplace. Do I take that to be a comment directed to not the totality of what you see in the newspaper, for example, but only to particular aspects of the news?
I`ll make myself quite clear. You have a daily newspaper with a business section, a sports section, an entertainment section, and if I want to work out what movie is showing at what time at what theatre, I go to the movies page, and if I want to go to what concerts are on next Saturday, I look to that section, and if I want the news, I go to the front of the newspaper. Are you talking about the totality of what the press puts out or are you confining your comments, including your critical comments, to what might be called news?
DR HIRST: I am actually more interested in news rather than those broader information aspects of the media. You are right, for example, as to what`s on; you can find that information in 30 or 40 different places now without ever having to pick up a newspaper. When I`m talking about the failure of the market, I`m talking about not necessarily individual newspapers and the daily news that they produce, but the market overall. The market for news as a commodity overall is showing signs of failure. I would argue that that is why we had things like the News of the World scandal in the UK. Those kinds of things to me are symptomatic of the failure of the market.
730reportland: I call bullcrap and, I smell chicken.
Crimes were committed by very.limited.news/UK-FOXified
Corruption of MET Police. Tampering with the Telephone system. Maybe some Stalking and Privacy Invasion. Soft-talk and jargon by Hirst does not change this. The phones were hacked, the bribes were paid, the motive was to drive sales. Profit margin and greed was why this was done. Pure and simple. To pretend some `big-picture` industry mumbo jumbo was the reason are just fairy tales.
MR FINKELSTEIN: Also when you speak about free speech, going back to the underlying principle that is at stake, when you speak about free speech or when you write about free speech, can I take it that when you write, you have in mind a particular kind of subject matter? That is, it`s not everything that anybody might say in a newspaper, say, about who is going to win next Saturday`s rugby or football game with commentary on the status of the coach and whether he should be replaced or not, you are really talking more specifically about what generally might be regarded as political speech?
DR HIRST: I think that political speech is obviously more important. I think freedom of speech is not confined to political speech, but certainly in terms of active citizenship and an active informed public, then political speech is obviously the most important thing because that impacts daily. Do we want a carbon tax or not? Is global warming real or not? With all those kinds of issues that we are faced with, we need to have information about them that is accurate and truthful information in order to make a decision about that. As citizens, we need to have the ability to discuss amongst ourselves what`s going on in the world in a way that is actually meaningful.
MR FINKELSTEIN: If you subscribe to, say, the marketplace of ideas view or the individual liberty view as the philosophical foundation for free speech, when it comes to political speech, isn`t that the most important kind of speech not to regulate?
DR HIRST: Yes, it is, but it is important not to overregulate it, I think I would argue.
I think that things like the Racial Discrimination Act and the defamation laws, and so on, are important. They are not something that`s has been dreamed up by a “communist tzar“ in Canberra to hobble the Murdoch press, they are actually important tools, if you like, that the public has at its disposal to ensure that free speech is used responsibly and that the public discourse is civil, so that we are not just screaming abuse at each other.
730reportland: ROFL. Hirst just earned a blue ribbon for that answer. It is good to see somebody calling out Limited News for their bleating and playing the victim, when so often they are the antagonist.
MR FINKELSTEIN: Why shouldn`t people scream abuse at each other?
DR HIRST: It`s not very helpful.
MR FINKELSTEIN: It might not be, but might the question be: so what? People scream at one another. In other words, they are uncivil in their political communications. In a democratic society, can I ask the question: so what?
DR HIRST: I guess because free speech has consequences. I guess, in a sense, that was at the heart of the Bolt matter before the RDA, that it was deemed that there were consequences of Andrew Bolt`s commentary. It was deemed in that context to be hurtful and I would actually argue inciteful, as to incite others into action. I make that point in the paper that you read, that in fact that is the situation. I would actually argue that Andrew Bolt was aware of that, and that there was a purpose behind what he was doing.
730reportland: The continuous lobbying on certain topics from Limited News would always make claims of `inciteful` a pretty certain winner for those who need to take Limited News to court. Lobbying proves intent.
MR FINKELSTEIN: His conduct was governed, as the court found, by existing legislation.
DR HIRST: Absolutely, yes.
MR FINKELSTEIN: I take it from your observations, including what you have said in the paper, that you don`t regard that kind of legislation, racial discrimination legislation, as an unreasonable encroachment on free speech?
DR HIRST: That`s right. I don`t.
730reportland: Unlike Hirst, who views `marketplace-ideology` as a `failed` and `flawed` ideology. I am calling it bullshit. It is an ideology that never worked or could work. The current failed scenerio, where Australia has Monster-Media owning 70 percent of the newspaper market, giving Limited News the ability to `shout-down` most other voices in the Nation.
So let`s get rid of Monster Media and create a second scenerio. In scenerio 2, we have 200 newspaper companies and each newspaper company only has 1/2 of a percent of market share. That`s right 0.5 percent. I am pretty sure that scenerio 2 would be a failure too because they would unite on many issues anyway. They could all unite with anti-green, pro-business, anti-ALP, rhetoric, having the same ability to `shout-down` other voices, just as Limited News does now.
While in scenerio 2 there may be some time lag in getting 200 newspaper companies singing the same tune. I have every confidence that Advertiser and Lobbyist dollars would get them there eventually. Especially on the most important issues. Shout-down complete.
The above is a word for word extract from Page 6 to Page 15 of this transcript, with my comments added in color. We will return soon after these `messages`.