Reporters Without Borders’s annual “press freedom” rankings are doing the rounds today, and . . . well, frankly, something looks a bit off. The United States, which has the least restrictive speech laws in the world, is at number 43, not only behind almost the whole of Europe, but behind countries such as Jamaica, Namibia, Ghana, El Salvador, Botswana, Trinidad, and Papua New Guinea.
One can certainly make the case that the United States deserves to have fallen this year. As the report notes,
Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result. This has been the case in the United States (46th), which fell 13 places, one of the most significant declines, amid increased efforts to track down whistleblowers and the sources of leaks. The trial and conviction of Private Bradley Manning and the pursuit of NSA analyst Edward Snowden were warnings to all those thinking of assisting in the disclosure of sensitive information that would clearly be in the public interest.
US journalists were stunned by the Department of Justice’s seizure of Associated Press phone records without warning in order to identify the source of a CIA leak. It served as a reminder of the urgent need for a “shield law” to protect the confidentiality of journalists’ sources at the federal level. The revival of the legislative process is little consolation for James Risen of The New York Times, who is subject to a court order to testify against a former CIA employee accused of leaking classified information. And less still for Barrett Brown, a young freelance journalist facing 105 years in prison in connection with the posting of information that hackers obtained from Statfor, a private intelligence company.
Still, last year, before all of this happened, the United States was in 33rd place — hardly a great showing. How can this possibly be the case?
The answer to this, as so often, depends upon how you define and measure “press freedom.” As a rule, Americans are not much interested in the word “freedom” being used to mean things other than the absence of government coercion. The First Amendment promises “Congress shall make no law . . . abridging the freedom of speech, or of the press”; it does not stipulate that the government will help the press or determine its structure or nature or staffing in any way, and nor does it mean that the private sector will be set up in a particular manner. This is deliberate.
It is also peculiar. As University of Virginia Law Professor, Frederick Schauer observed in the abstract of a 2005 paper on American exceptionalism,
the United States is a free speech and free press outlier. With respect to a large range of issues – defamation, hate speech, publication of information about ongoing legal proceedings, incitement to violence or illegal conduct, and many others – the United States stands alone, not only as compared to totalitarian states, but also in comparison with other open liberal constitutional democracies. The reasons for this divergence are common, but among the explanations are the complexities of the trans-national migration of legal and constitutional ideas, differential commitments to libertarian visions as a matter of basic political theory, differences in the constitutional text, differences in political and legal history, differences in the role of various interest groups, and differences in views about constitutionalism and the role of the courts.
Schauer is correct. When Americans tend to think of “press freedom,” they think of John Adams Constitution for Massachusetts, in which it was promised that:
The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.
Likewise, they think of Justice Black’s reminder that,
in the First Amendment, the Founding Fathers gave the free press the protection is must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.
Which is to say that the American constitutional and cultural settlement holds speech to be a wholly negative right, the integrity of which is determined by the extent to which the government stays away from its exercise. Globally, however, this is by no means the uniform view. Anastas Mikoyan, a Soviet statesman under both Stalin and Khrushchev, summed up well the positive-rights view of “press freedom” that, in a more limited form, is popular in Europe and beyond (and, increasingly, on the American Left):
We think we have got freedom of the press. When one millionaire has ten newspapers and ten million people have no newspapers — that is not freedom of the press.
As far as I can tell, RWB does not go as far as Mikoyan. But it does not define “freedom” in John Adams’s way, either – instead including in its analysis a host of variables that, to my eyes, are pretty much meaningless. Its rankings, the report confirms, are based 1) “on a questionnaire that is sent to our partner organizations (18 freedom of expression NGOs located in all five continents), to our network of 150 correspondents, and to journalists, researchers, jurists and human rights activists” – in other words, on the subjective judgments of the people who responded to the questionnaire rather than an analysis of the law (and who may well have differing views as to how egregious a given restriction is); 2) on an investigation into “the number of journalists, media assistants and netizens who were jailed or killed in the connection with their activities, the number of journalists abducted, the number that fled into exile, the number of physical attacks and arrests, and the number of media censored” (this is worthwhile); and 3) upon an weighting of six variables that may or may not have anything to do with press freedom as it is understood in the Anglosphere. These are:
1) Pluralism, meaning the representation of different views in the media
2) Independence of the media vis-à-vis political, economic, religious and military centres of power
3) Quality of the legislation governing the media
4) Transparency of the bodies regulating the media
5) Performance of the infrastructure supporting the media
6) Overall climate for freedom of information
One can see the problem here. “Pluralism,” for example, tends to be a positive thing in and of itself, and it is often the product of a free system. But it is not an indicator of liberty per se. One can quite easily have a free country in which the press is not restrained at all and in which a limited number of viewpoints obtain. France, for example, has a significantly broader range of “mainstream” political positions than does the United Kingdom or the United States. The French parliament features both actual communists and radical right-wingers, and the press reflects that diversity. In Britain and the United States, meanwhile, the parties — although notably different from one another — are ideologically much closer together. Does this mean that France is “freer” than Britain and America? Does it mean that the country’s press is less restrained? Of course not. Nevertheless, Reporters Without Borders appears to factor this in as if it means something concrete.
Among some genuinely useful inquiries about censorship, the outfit’s questionnaire also asks questions such as, “Is journalism training available at a professional level, with emphasis on developing the capacity for critical judgement in journalism students?”; ”Is the practice of journalism prohibited or discouraged [on the grounds of nationality, ethnic origin, social class, religion, or gender]; “How well do media reflect the population’s language diversity?”; “Do media reflect the range of opinions among members of the public?”; “How do you assess the willingness of local and national officials to expand Internet access?; and “To what extent do radio and television stations with the largest audiences present independent and critical news? – all of which are interesting, but none of which really have anything to do with “freedom” as it is defined in the United States.
The upshot? Well, as is everybody else, Reporters Without Borders is making a value judgment here, defining the word “freedom” in a particular way and ranking the nations of the world accordingly. It is certainly thought-provoking, and the reasons given for the drop in America’s position should by no means be ignored. But, as a benchmark for liberty, I’d take it with a pretty large pinch of salt.