Saturday, July 26, 2008

Free speech is too important to restrict

I hate having to defend people who I consider toads, but right now that's just what I have to do.

Last week a British court gave a victory to Max Mosely, a British politician who claimed that he had been smeared by tabloids after they published intimate details of an orgy at his home in Chelsea, which according to the tabloids involved nazi role-play (for the record, Mosely admits to the orgy but denies the nazi role-play.) From this case we've learned that there is now a whole new subcategory of S & M in which one group of people dresses up in World War II vintage Nazi uniforms and then beat and humiliate their 'captives.' Well, just what I didn't need to know. I'd find it offensive that anyone could turn the systematic slaughter of entire populations into a sexual fantasy if it wasn't so utterly stupid. Best left behind closed doors.

The court ruled that Mosely was entitled to his privacy and that it was a violation of that right for the newspaper to publish details of his sex life.

And that ruling is chilling to me.

Now, I'm a strong advocate of the right to privacy from laws, government intrusions and the like. I've always been an advocate for the right of consenting adults to whatever the heck they want in the privacy of their own home (even if it is to dress up as Nazis and whip each other.) It is also true that tabloids are the worst kind of offenders of personal privacy (if you don't believe that then ask anyone who knows Brittney Spears, Angelina Jolie or Lindsay Lohan.) In celebrity-studded Southern California tabloid reporters eager for a picture have caused several minor traffic accidents and prevented people from getting into restaurants by packing around the front door with cameras clicking. The potential for a major, even fatal accident (and we still don't know how much of a role the paparazzi played in the death of Princess Diana a decade ago), or crowds of paparazzi preventing people from getting out of a restaurant in case of a fire, is present and sooner or later the law of averages says that something like that will happen. And that's just the American tabloids, which are by any account far tamer than their British counterparts (one of the benefits of not having a monarchy, I suppose.)

Personally, I make it a point never to purchase a tabloid and I encourage my kids to not buy them. And I take anything I hear from them with a grain of salt unless it is confirmed by a news source I trust.

Nevertheless, the Mosely verdict is the wrong one. Any kind of censorship (and restrictions on what tabloids can report is censorship) is a step towards an authoritarian state like we all fear. Just last week, the National Enquirer reported that John Edwards had been to a hotel in the middle of the night last week to see a former campaign worker who he has been accused of impregnating (Edwards, the campaign worker, and another campaign worker who claims he is really the father all deny it.) Now, I was skeptical the first time I heard that story a couple of months ago (especially since it also originated in the Enquirer). For one thing Edwards was thoroughly vetted by the Jesse Helms organization (nobody dug dirt better) when he ran for the Senate against a Helms protege in 1998 and again four years ago by the Republican attack machine when he was on the ticket with John Kerry. For him to suddenly do something so stupid this year would seem almost unbelievable, short of his having snuck off to a surgeon's office and having had a secret frontal lobotomy first. But in fact now I am not so sure. It seems to me that if a politician were accused of an affair, especially falsely accused, rule number one would be to avoid ever being around the woman he was accused of having it with again (and even more so to avoid being around her in a place like a hotel at 2 A.M.)

Then again this weekend there was a minor row around Barack Obama's trip to Israel. Like many visitors to come and pray at the Western Wall (Judaism's most holy site) Obama apparently wrote a private prayer on a piece of paper and placed it into the wall. Someone apparently retrieved that particular piece of paper and gave it to Maariv, an Israeli newspaper which published the prayer. I know that if I wrote a private prayer and put it in a holy place I'd expect it to remain between me and God and some Israelis are shocked that the newspaper would carry out such a breach of privacy (though apparently no Israeli laws were broken.)

Nevertheless the National Enquirer and Maariv should be allowed to publish what they find out just as much as any other journalistic enterprise (including the British tabloids.) Leaving aside the obvious facts that this information could just as easily be published, even if anonymously, on the internet or that many more people buy news for the salacious details than for any real news (one reason why traditional newspapers are declining in sales while sales of tabloids never seem to be hurt) they should still have the right to publish what they do and by implication go where they do to get the news. There are some things much more threatening than nosy reporters or photographers intruding on people's most private moments (as irksome as that can be) and one of those is the prospect of the law telling any publication that they can't publish something. Because if they can tell you that you can't publish details of Max Mosely's or John Edwards' sex life, then they can tell you what else you can't publish, and then what else until eventually it becomes instead a list of what you can publish (which could still be shrunken.) That is the policy that the media operates under in countries like China, Cuba and Zimbabwe.

There is of course another threat. During the Hoover era at the FBI (as I once posted), J. Edgar Hoover and others were expert at collecting dirt on everyone they could. By the time he died he had files on as many as fifty million Americans from all walks of life (and certainly on every American who might ever be in a position of power.) Often the government would spill details of someone's personal life in an effort to discredit them (This happened to everyone from Dr. King to people who opposed the Vietnam war to members of Congress who suggested budget cuts to programs that Hoover supported.) Of course laws have since been passed limiting the ability of the Federal Government, even if they know something about somebody, to use it against political opponents (though that hasn't stopped them from trying on occasion.) Is there anything to prevent a future, more sophisticated version of Hoover, from using tabloids to further his own private agenda?

Well, no there is not. And leaks happen today, often in the furtherance of someone or some group's agenda. And they don't even have to go to tabloids to leak, unless the story is so sewer-worthy that the official Washington media won't touch it. But that is the price we pay for a free press. The answer is not to muzzle the press, but to aggressively investigate and prosecute anyone who violates the law in terms of leaking privileged information or violates existing privacy laws in getting that information (for example I would have agreed with Mosely if he'd based his suit on his contention that the tabloid press acted as 'peeping toms' rather than adding that comment as an afterthought and challenging their right to publish the story at all.) Similarly, the city of Malibu, California (ground zero for the paparazzi) is now looking at ways they can fine reporters who drive dangerously or otherwise cause disturbances including blocking entrances to businesses. There is nothing wrong with that-- require that they maintain order while going about their chosen line of work.


wstachour said...

I'm sure my input does not further this discussion in any intelligent way. But as a follower of Formula One racing (the governing body of which, the F.I.A., is headed by Max Mosley) I've been hearing of all this for months now.

I also agree that the whole business seems highly distasteful, but I just have to think that Mosley's right to have his sex life be a private matter far outweighs the right of the press to speak the truth. I cannot imagine the means by which the general public might justly come to have access to such private material.

THAT seems chilling to me.

Zach said...

What concerns me is that some of this may have been libelous (the part about the Nazi costumes). However, the argument that his privacy outweighs the freedom of speech really bothers me.

In fact, except for issues of national secrets and security, this is totally unprecedented. In fact, there was a case involving the photographing of the death penalty, which was illegal. The verdict came down in favor of the newspaper, arguing that regardless of whether the picture was taken legally or illegally, once the picture was in their hands, they had the legal right to publish it.

Similarly, yes, people have the right to have whatever kind of sex they want, wearing whatever kind of outfits they want, in the privacy of their own homes. But, if they don't want people to find out, they should find some quieter kinky friends.

Once the tabs hear about it, they have every right to publish this.

Eli Blake said...


I agree that his private life should be safe from government intrusion. In an ideal world that would also include private individuals (and for profit organizations, i.e. tabliods) but in fact if we decree that no one shall publish details of someone's private life then couldn't that be used, for example, by the censorship crowd as a new tool to ban all porn (not that I'm defending porn, but I am defending the right to publish porn.) It just seems to me that there are worse things than an unmuzzled free press, and muzzling the press we have is a dangerous step in that direction.

Zach: Of course if he can prove libel then he has recourse to the civil courts. Tabloids can be sued (a la Carol Burnett) and it seems to me that one of the more effective tools we do have in reigning them in is still the threat of a lawsuit (one reason I oppose 'tort reform.')

So maybe in summary I am in support of reigning them in but by any method OTHER than passing a law and saying what they are doing is illegal.

Zach said...

I agree. As I said before, the media should have a right to publish information it obtains, regardless of how it obtains it.

That is to say, if someone is caught carrying a camera into an execution, they should be punished. If somebody is caught sneaking onto someone's property to spy, they should be charged with trespassing. BUT, whatever information they gather is fair game for publication.