--- ""Free Speech Discourse" as an "Emancipatory Ideology": A Reply to Lawrence McNamara" [2003] UTSLawRw 6; (2003) 5 University of Technology Sydney Law Review 92
“FREE SPEECH DISCOURSE” AS AN “EMANCIPATORY IDEOLOGY”: A REPLY TO LAWRENCE MCNAMARA
Paul Jones
Lawrence McNamara’s commentary raises issues that are central to my motivations in working in this area, so I welcome the opportunity provided by his constructive comments to elaborate these further. First let me set aside what I think is a red herring, i.e. whether or not I am “both too generous and too unfair” to the Court in the model of democracy I attribute to it. I have familiarized myself with the texts of the judgements to a considerable degree. However, as a non-lawyer, I thought it sensible to defer to the interpretations of the judgements within the existing legal scholarship, and then argue that there is still “mobilizing” potential within those interpretations. Michael Chesterman’s book[1] provides ample evidence for his interpretations of the Court’s overall tendencies across the judgements as well as counterveiling tendencies within these. He notes the strong tendency in Lange v Australian Broadcasting Corporation[2] to avoid the phrase “representative democracy” and use instead “representative government” and, he argues further, this is consistent with an institutional conception of democracy or self-government.[3] I am happy to stand by the strategy of modestly questioning Chesterman’s self-styled “pessimistic” conclusions on the basis of his own interpretations of the judgements. That is, I argue that the “top-down” institutional conception is, in my view, suffi cient to advocate a “European” conception of the implications
of the freedom for media policy.
But I should stress again that I also deliberately moved beyond Chesterman’s chosen examples to a more explicit discussion of media policy. Thus I also tried to draw on the work of Barendt and other comparative media law scholars in order to demonstrate that very different international
“best practice” policy options so exist for media policy “outside the box”
of a normatively impoverished Australian media policy.
If this is my chief task, then why not just forget about free speech discourse, as McNamara implies, and argue instead from models of democracy? The initial answer to this lies in another of Lawrence’s comments: that, appropriately tweaked, free speech discourse can challenge excesses of “private” (i.e. corporate) power as well as state power. My paper
was also informed, however, by a methodological emphasis quite different from Lawrence’s rejection of free speech discourse as “an analytical vehicle” or “a helpful way to think about the law”.[4] Rather than an analytical vehicle, I regard free speech discourse, for all its limitations, as a normative ideology which provides a common “metadiscourse” for media policy debate far superior to the available alternatives. In Australia these alternatives would appear to be: economic rationalism coupled with a naïve technological determinism; confused conceptions of “media diversity” that confl ate diversity of opinion and plurality of ownership; and, most dangerous of all perhaps, the myth of “the best of both worlds”.[5] It is no coincidence that I have found one of my best examples of the last of these in a media law textbook, Armstrong et al.’s Media Law in Australia.[6] Perhaps the single best demonstration of the shift that has been brought about in the last decade can be seen in such Australian media law textbooks. Current textbooks now open with a chapter on freedom of speech, whereas Armstrong et al. follow the “nuts and bolts” of the relevant items of legislation, so picking up legitimating myths along the way.[7]
So, in sum, there are three reasons why “free speech discourse” is worthy of such persistence:
(i) its regulative power as a legal discourse that necessarily invokes inter- national comparative discussion and the possibility of “world’s best practice”;
(ii) its potential as a normative “metadiscourse” within which media policy advocates can fi nally find a common language with which to
“speak to each other”;
(iii) its capacity to “challenge power” beyond the state.
I have reworked Lawrence’s quasi-Foucaultian categories in this summary but my own position is far more quasi-Habermasian. I entirely agree with Habermas that part of the Enlightenment legacy remains in the form of emancipatory ideologies that “differ from Foucaultian discourses because of their capacity for self-transformation”.[8] They are
thus compatible with his public sphere thesis. What is meant by “self- transformation” is best described by distinguishing such ideologies from the commonly (mis)understood Marxian sense of ideology as a means of
“masking” social interests.[9] “Freedom of speech/political communication/ the press” is, of course, used to such ends ad nauseam by, especially, newspaper proprietors who also happen to direct major culture industry corporations. Most obviously, Rupert Murdoch has become a master of such rhetoric.[10]
However, the emancipatory—self-transformative—potential of the ideology of freedom of political communication exceeds this. It thus differs from a transparently masking myth like “the best of both worlds”. It has a utopian potential that cannot be exhausted by its use within legitimating masking operations. Whichever conception of democracy is seen to inform it, the promise of more than what is currently available in democratic practice remains. Now, the means of exploiting this contradiction has been called immanent emancipatory ideology critique. It is a “hermeneutics with an emancipatory intent”.[11] This is how I would characterize my own critical sociological practice methodologically in this instance.[12] Yet emancipatory hermeneutics is particularly relevant to law, of course. Hermeneutic methods are part and parcel of judicial practice, especially that of constitutional courts, upon which Habermas has conferred a “tutoring” role in his recent theory of law.[13] Yet I would argue further that all this can lead to very practical policy options.
I will try to demonstrate this with a quick case-study. Probably one of the most debated moments in the judgements—certainly outside but perhaps also inside legal circles—was the rejection of the Hawke government’s proposal to ban paid political advertising that was at the heart of Australian Capital Television v Commonwealth.[14] An “unmasking” ideology critique would immediately point to the coalition of interests that made up the plaintiffs. “ACTV” happens to be alphabetically the first of a
group of companies that includes several other regional television licencees as well as TCN Channel 9 Pty Ltd (then a subsidiary company of Kerry Packer’s PBL). So here, it might be said, was one of the most powerful privately owned media interests in the land rushing to protect a lucrative component of its advertising revenue under the cloak of a claimed freedom of political communication.
However, the criticisms of the ACTV decision focus less on this
“masking” feature than the enhanced democratic processes that might have resulted from the legislation itself. Mason CJ accepted the position put by the plaintiffs that the legislation banning paid political advertisements on commercial radio and television contravened an implied constitutional freedom of political communication. Crucially, Mason CJ rejected the argument presented in the Minister’s reading speech that the legislation
“placed all the community on an equal footing” of media access by replacing the prohibited paid advertisements with the allocation of free broadcast time to political parties according to the proportion of the vote received at the previous election. Mason CJ concluded instead that the legislation “severely impairs the freedoms previously enjoyed by citizens to discuss public and political affairs and to criticize federal institutions”.[15]
Representative democracy (as it was often called in this decision) was not sufficiently served by a one way flow of political communication .[16]
His immediate ground for this conclusion was that the legislation effectively confined eligibility to politically advertise to incumbent political parties as only about ten per cent of advertising time would be allocated to others at the discretion of the (then) Australian Broadcasting Tribunal. Ian Ward criticizes this initial position in his excellent book, Politics of Media,[17] as involving “a leap in logic” and of being subject to a number of
“clear diffi culties”:
In fact, a ban on broadcast advertising does not prevent candidates, parties, pressure groups and others from purchasing advertising space in the print media, nor indeed from using methods such as direct mail to market their message. As well, with an appropriate public relations strategy, many political actors are effectively able to use the “free” media to get their point across. Groups wishing to make an effective response to points made in the news media by commentators or their opponents in fact have more options than Mason CJ imagines in insisting that television advertising is a necessary precondition for free political communication.
Quite rightly, Mason CJ argues that any scheme which “gives preferential treatment to parties represented in the preceding parliament”, which favours incumbent candidates, and which excludes sectional interest groups not putting forward candidates, will not allow a level playing field or “equality of access to all in relation to television and radio”. But he fails to recognize that the commercial sale of air time to political groups also fails this test.[18]
Ward’s account of modern public relations and “news management” is empirically correct but this pragmatic “realism” misunderstands the form of Mason CJ’s argument as a “leap in logic”. Rather, Mason CJ practises an immanent critique that holds the Commonwealth to the criterion of a “level playing field” which it set for its legislation. Moreover, Mason’s argument goes on to directly address the similar but more fundamental version of the Commonwealth’s case: that the acknowledged diminution of free speech in the prohibition was justified in the public interest by the reduction of political parties” dependence on private donations (to fi nance advertising budgets) and thus the diminution of the likelihood of corruption and undue infl uence.
And so Mason CJ necessarily moves to weigh these competing conceptions of the public interest in the light of the US “free speech tradition”.[19] The following passages come from a section in Mason CJ’s judgement headed “Infringement: The test to be applied”. They strongly anticipate his 1996 statement off the bench about the ABC cited in my paper:
[T]he concept of freedom of communication is not an absolute. The guaran- tee does not postulate that the freedom must always, and necessarily, prevail over competing interests of the public ....
A distinction should perhaps be drawn between restrictions on communic- ation which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve protec- tion of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely diffi cult to justify restrictions imposed on free communication which operate by refer- ence to the character of the ideas or information. But, even in these cases, it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication. So, in the area of public affairs and political discussion, restrictions on the relevant kind will ordinarily amount to an unacceptable form of political censorship.
On the other hand, restrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible to justifi cation. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing interest which the restriction is designed to serve, and for a determination whether the restriction is reason- ably necessary to achieve the competing interest. If the restriction imposes
a burden on free communication that is disproportionate to the attainment
of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication.
In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgement on these issues. But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case. And the Court must scrutinize with scrupulous care restrictions affect- ing free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose.[20]
This distinction is recognizable as Lichtenberg’s distinction between structural and content regulation discussed in my paper. Mason CJ regarded the Commonwealth legislation as falling into the first category rather than the second because it specifically targeted for prohibition “matters relating to public affairs and political discussion”.[21] Hence the “scrupulous care” he recommends in such determinations. The form of “realistic” trade-off Ward’s critique implies would not do because a quasi-censorial restriction of “content” was at stake. Mason CJ’s task was to assess the legislation, not the existing state of play in news management. The only possible justification would have been one which proportionally met the positive criteria Mason CJ indicates. In its absence, the negative conception of the freedom had to prevail.
In critical sociological terms, Mason CJ’s immanent critique of the legislation did point to a means by which the ideology of freedom of political communication did offer the prospect of fulfilling the legislation’s utopian promise: had it delivered what it promised—a more level playing field for all potential participants—rather than a de facto restriction of
(subsidized) political advertising to the major parties. But this prospect still seems to escape the short-term imagination of Australian realpolitik, which operates at the same level as an unmasking critique—hence Keating’s declared “diversity of power bases” media policy goal.
In a useful parallel, the issue of paid political advertising is likely to come to a head in Britain in the near future. The UK Parliament’s Joint Committee on Human Rights has recently warned that the new Communications Bill’s continuation of the existing British ban on paid political advertising may eventually be challenged in the European Court of Human Rights. This is because a decision by that Court in 2001 found that a similar Swedish policy contravened Article 10 of the European Convention on Human Rights (concerning freedom of expression). However, the UK Joint Committee did not recommend abandoning the ban but, rather, “that the Government examine ways in which workable and Convention-compatible restrictions ... could be included
in the Bill”.[22] Had the Australian Parliament received such good advice, the Hawke government might have developed a workable ban on paid political advertising and the current government might have been saved the embarrassment of being accused of allowing the powers of the ABA to encroach upon the implied freedom in its current Bill!
More generally, however, it is worth noting that the European Convention explicitly recognizes that the right to freedom of expression does not prevent states from licensing broadcasters. This is consistent with the “European” interpretative tradition I tried to bring to my reading of the implied freedom and which, I would argue, is remarkably compatible with the passages I have cited from Mason CJ above and in my paper. So, I would argue, it is precisely because of the “effectivity” of such a mode of argument when institutionalized within the law, that I would rather argue from the norm of freedom of political communication in media policy—and its implict positive goal of informed citizenship—than abstract models of democracy.
But this is hardly to advocate the “state intrusion” Lawrence attributes to me, nor quite the level of “content regulation” he seems to assume. The British system’s structural features have been characterized perhaps best by John Thompson as a “regulated pluralism”[23] and the content regulation I advocate is no more (nor less) than the British “positive codes” of good journalistic practice. The chief challenge of media policy is not so much to advance an interventionist role for the state nor even to diminish “private power” understood as the interventionist practices of nasty moguls. Rather, the chief challenge it is to reduce the continued encroachment of a remarkably undiversified market upon the realm of public deliberation—including the public right to know—that Habermas characterizes as a public sphere. This is what the British managed to “get right” instituionally in their media policy and the redesign of which—in the face of digital communications technologies—they are debating amongst themselves again at present.[24] In the absence of strong European regulatory tradition or the legacy of a US Fairness Doctrine in Australia, the emancipatory ideology of freedom of political communication thus holds much promise for Australian media policy.
Bibliography
Armstrong, D., Lindsay, D. and Watterson, R., 1995, Media Law in Australia: Third Edition, Oxford University Press, Melbourne.
Barendt, E., 1994, “Free Speech in Australia: A Comparative Perspective”,
The Sydney Law Review 16 (2), 149–165.
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//media.guardian.co.uk/whitepaper/story/0,7521,851965,00.html, downloaded 07.12.02.
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Australian Media Law, LBC Information Services, Sydney.
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Cunningham, S. and Flew, T., 2000, “De-Westernizing Australia?: Media Systems and Cultural Coordinates”, in Curran, J. and Park, M-J. (eds.), De-Westernizing Media Studies, Routledge, London.
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———, 1996, Between Facts and Norms: Contributions to a Discourse Theory of
Law and Democracy, Polity, Cambridge.
Jones, P., 1998, “Between Cultural Studies and Critical Sociology: Public Spheres, Counter Public Spheres and Journalism”, Media International Australia 87, August, 121–133.
———, 2000, “Democratic Norms and Means of Communication: Public
Sphere, Fourth Estate, Freedom of Communication”, Critical Horizons 1
(2), August, 307–339.
———, 2001, “The Best of Both Worlds? Freedom of Communication and
‘Positive’ Broadcasting Regulation”, Media Culture and Society 23 (3),
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———, 2002, “The Implied Freedom of Communication and Australian Media Policy”, paper prepared for Public Right to Know Conference, Australian Centre for Independent Journalism, UTS, Sydney, 13–15
September 2002 (published in this volume).
McNamara,L. (2002) “Free Speech as Help or Hindrance? A Comment on Gelber, Jones and Free Speech Discourse”. Paper Prepared for 2002 Public Right to Know Conference, Australian Centre for Independent Journalism, UTS, Sydney, 13-15 September (published in this volume).
Márkus, G., 1995, “On Ideology-Critique-Critically”, Thesis Eleven 43, 66–99. Murdoch, R., 1998, “Pluralism and Diversity Rule in the Excitement of a
Brave New World”, The Sydney Morning Herald, 13.04.98, 13.
Sinclair, J., 2002, “Media and Communications: Theoretical Traditions”, in Cunningham, S. and Turner, G. (eds), The Media and Communications in Australia, Allen & Unwin, Sydney.
Thompson, J., 1990, Ideology and Modern Culture, Polity, Cambridge. United Kingdom Parliament, Joint Committee on Human Rights, 2002,
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[1] Chesterman, M., Freedom of Speech in Australian Law, Ashgate, Aldershot, 2000.
[2] [1997] HCA 25; (1997) 189 CLR 520.
[3] Chesterman, op. cit., 39.
[4] McNamara, L., “Free Speech as Help or Hindrance? A Comment on Gelber, Jones and Free Speech Discourse”, paper prepared for 2002 Public Right to Know Conference, Australian Centre for Independent Journalism, UTS, Sydney, 13–15 September, 8.
[5] I should also mention here the relative lack of interest in these normative questions within Australian “media studies”. I have commented elsewhere, for example, on the curious failure of the Habermasian public sphere thesis (or anything like it) to achieve intellectual influence in Australia comparable to that within Europe and the USA (Jones,
[1998]). As continuing evidence of this tendency, neither “public sphere” nor “freedom of communication” receive an index entry in the latest edition of the standard Australian introductory textbook to this field (Cunningham and Turner, 2002).
[6] See the discussion in Jones, 2001. For a media studies invocation of the same myth, see Cunningham and Flew, 2000. On the limits of “public sphere” and “fourth estate” compared with freedom of speech, see Jones, 2000.
[7] Lawrence McNamara is of course the author of one of these chapters.
[8] Habermas, J., “Further Reflections on the Public Sphere”, in C. Calhoun (ed.). Habermas and the Public Sphere, MIT Press, Cambridge, Mass., 1998, 429.
[9] Most exegetical literature fails to draw the distinction between emancipatory and masking conceptions of ideology and so perpetuates the view that “ideological critique” is the same as a more or less reductive political economy (e.g. Sinclair, 2002).
[10] E.g. Murdoch, R., “Pluralism and Diversity Rule in the Excitement of a Brave New
World”, Sydney Morning Herald, 13.04.98, 13.
[11] Márkus, G., “On Ideology-Critique-Critically”, (1995) 43 Thesis Eleven, 66–99.
[12] In terms of Lawrence’s discussion of the relation between “truth” in free speech discourse and the Enlightenment focus on reason, I of course agree that there is any uneasy relation between “factual content” and the normative/ethical “essence of political discussion”
(McNamara, 2002, 6). I have argued elsewhere that journalists negotiate this distinction via the use of distinct journalistic cultural forms (Jones, 2000, 330). The recognition of these cultural forms in programme codes by media policy practitioners is the chief “practical” relevance of this issue to my central topic. Emancipatory ideology critique claims to recognize a “truth content” immanent within an ideology but not necessarily known to its practitioners. It is “the confrontation of an ideology with its own truth” (Frankfurt Institute for Social Research, 1973, 190).
[13] Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, Polity, Cambridge, 1996, 280.
[14] [1992] HCA 45; (1992) 177 CLR 106.
[17] Ward, I., Politics of the Media, Macmillan, Melbourne, 1995, 193.
[18]Ibid.
[19] Barendt, E., “Free Speech in Australia: A Comparative Perspective”, (1994) 16 (2)
The Sydney Law Review, 163.
[20] [1992] HCA 45; 177 CLR 106 at143–144; emphasis added; footnoted references to (usually US) case-law have been deleted.
[21] [1992] HCA 45; 177 CLR 106 at144
[22] United Kingdom Parliament, Joint Committee on Human Rights, 2002, para 24.
[23] Thompson, J., Ideology and Modern Culture, Polity, Cambridge, 1990, 262–263
[24] See the very useful recent opinion piece by Melvyn Bragg, 2002, “The Crunch”,
Media Guardian Online, 02.12.02: http://media.guardian.co.uk/whitepaper/story/
[0],7521,851965,00.html, downloaded 07.12.02.