Jack Shafer

Giving testimony yesterday at the Leveson phone-hacking inquiry (PDF) in London, former News of the World features editor Paul McMullan took the only position on the scandal not yet occupied: That of an unrepentant tabloid journalist.

Don’t blame tabloid excesses on tabloid journalists, McMullan held, as he blithely parried the panel’s questions about how he could justify the tabloid press’s phone-hacking practices, its surveillance of subjects, and other intrusions into people’s lives.

Blame tabloid readers, McMullan said.

“Circulation defines what is the public interest. I see no distinction between what the public is interested in and the public interest,” he said. “The reason why News of the World sold 5 million copies is that there were 5 million thinking people and that’s what they wanted to read.”

Continuing his blame-the-readers-not-me tack, he said, “[Readers] are the judge and the jury of what is in the paper, and if they don’t like it—if they don’t like the fact that you’ve written a story about Charlotte Church’s father having two-in-a-bed—sorry, three-in-a-bed on cocaine, then they’ll simply stop buying the product.”

Asked by Lord Justice Leveson if the ends justified the means, McMullan let his interrogator have it. “Yes, I think so,” he said. “All I’ve ever tried to do is write truthful articles and to use any means necessary to try and get to the truth.”

Although the Leveson committee was asking the questions and not giving the answers, it seemed stumped by McMullan’s intransigence, even when he offered that “Privacy is the space that bad people need to do bad things in. Privacy is particularly good for pedophiles. … It brings out the worst in people.”

Obviously, just because News of the World—which owner Rupert Murdoch closed this summer as the phone-hacking scandal crested—commanded 5 million paying customers can’t justify the serial law-breaking attributed to its journalists. But McMullan’s moxie temporarily moved the topic to an area of non-consensus: How grounded to reality are the privacy expectations of politicians, sports stars, celebrities, and civilians?

In a recent Journal of Media Law & Ethics (PDF) article about the Max Mosley case, scholar Stephen Bates notes that the British law only recently embraced privacy.

“A dozen years ago, British reporters were less vulnerable to invasion-of-privacy suits than American reporters. Today, British reporters are far more vulnerable. Indeed, privacy lawsuits are outnumbering libel ones,” Bates writes. “As a result, freedom of the press in Britain has been constricted.”

Bates, who is a lawyer, surmises that the news coverage lavished on adulterers Mark Sanford, John Ensign, John Edwards, and Tiger Woods would have given all four randy fellows standing to sue for invasion of privacy under British law.

Sounding a little like McMullan (but without justifying law-breaking or other tabloid excesses), Bates writes:

The press does more than help create informed, active citizens. It seeks not merely to serve the public interest; it also seeks to serve the public’s interests, including interest in celebrities and scandals. The news media entertain as well as inform, and they serve the working class—the principal audience of tabloids—as well as the middle and upper classes. Daniel Bell and Irving Kristol once wrote, “It is probable that as much mischief has been perpetrated upon the human race in the name of ‘the public interest’ as in the name of anything else.”

The appetite for scandal news, both here and in the U.K., is so insatiable that tabloid journalists are forever creating or “discovering” new celebrities whose peccadilloes—especially sexual ones—can be reported. How else to explain the rise of the Kardashians? This appetite has no automatic right to a meal but the healthy market for the “red top” tabs in the U.K. and their U.S. counterparts—Star and Us, TV shows like TMZ, and celebrity columns in every U.S. daily newspaper—confirms how mainstream and widespread the consumption of gossip is. McMullan is right: The demand so demonstrably creates the supply that it requires us to pause long enough to figure out why we so love anything approaching a scandal, even if the exposé doesn’t contribute to the “public interest.”

Who among us will turn down gossip, especially of a sexual nature, about classmates, officemates, casual acquaintances, Hollywood actors, politicians, and all the way up to complete strangers? Bates helps us understand when he quotes C. Edwin Baker: “Gossip is an essential means of communication.” We crave intimate details of others’ lives because they give us a sense of power over them; because the intimate details of others’ lives help us understand our own; because the intimate details of others’ lives give us social currency and social standing. “Scandal news, like literature, illuminates human nature,” Bates writes.

Again, none of this is meant to defend reporters who break the law. But as the Leveson inquiry vectors from investigating law-breaking toward invasion of privacy questions, the closer it comes to criminalizing journalism. Most celebrity actors and musicians employ publicists to cultivate press for them, seeking, as Bates puts it, “positive publicity for their private lives,” as he approvingly quotes this passage from a 2009 legal case: “As there should be ‘truth in advertising,’ so there should be truth in publicity. The public should not be misled.”

If the Leveson inquiry ends up inspiring new, tougher privacy laws in the U.K., celebrities might sleep better. But so will U.K. government and corporate officials, and that’s not good. I encourage you to read the Bates article, not just because it’s learned and wise, but because it summarizes the issues in its kicker by quoting this splendid passage from Tom Stoppard:

“Junk journalism is the evidence of a society that has got at least one thing right, that there should be nobody with the power to dictate where responsible journalism begins.”

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Ivan Lewis energized freethinkers everywhere today by proposing that the naughty U.K. press be reined in by “a new system of independent regulation.” In his speech to the Labour Party conference, the Labour shadow culture secretary called for the press to “consider whether people guilty of gross malpractice should be struck off,” by which he meant banned from the practice of journalism.

The U.K. press immediately roared back—all but accusing Lewis of campaigning for a cabinet position as Minister of Censorship. Lewis then retreated on Twitter. “I said industry should consider whether gross malpractice should lead to a journo being struck off and i oppose state oversight of press,” he wrote.

By the end of the day, Lewis was backpedaling faster, telling the BBC, “I regret the fact that there has been a response to something that I didn’t say.”

Yeah, yeah, Ivan, but I think we got your message the first time: When a scandal swallows police, newspaper executives, media moguls, private detectives, the prime minister, and journalists, your remedy would not be jail time for those who broke existing laws. What you want is a special “independent” body that would ostracize and shun the rotten journalists. Maybe even build a leper colony for them.

But as Helen Lewis-Hasteley writes on the New Statesman website today, no mechanism exists in the U.K. to disbar or otherwise “strike off” a rotten journalist. The news profession doesn’t accredit journalists—they’re not like doctors or lawyers or accountants with specific professional qualifications! It follows that there’s no industry-wide consensus on what constitutes gross journalistic malpractice. Likewise, the U.K. has no power to create a registry to prevent rotten journalists from practicing their craft, which means implementing Lewis’ modest proposal  would require a law spanning all print and electric media. You’d have to govern the U.K. the way the Communist Party governs China if you wanted to appoint guardians to stand at the gates of the Web to prevent shamed individuals from setting up blogs or otherwise expressing themselves.

Even if such a registry of banned journalists were conjured into existence, posits Lewis-Hasteley, how would it be enforced? She writes:

If we look at the countries around the world where the government keeps such a register, I bet they’re not the ones you’d regard as shining beacons of democracy and enlightenment. Who would administer the register? What would the appeals procedure be? How much would it cost to join?

Maybe Lewis can figure this all out by staging a fact-finding mission for himself and other members of Parliament to Zimbabwe and Nicaragua, where the state licenses (PDF) journalists.

“Will [Lewis] jam bloggers from outside Britain?” asks Roy Greenslade in the Guardian. “Are we to take the Chinese path by setting up a battery of digital censors located in some Whitehall technology centre?”

Lewis isn’t alone in calling for a new regulatory apparatus. Tory Prime Minister David Cameron made similar noises in July—sans the “striking off” innovation. Cameron called for the establishment of a new regulatory body that would be “independent” of both the press and the government. How the new watchdog agency Lewis and Cameron advocate would differ from the current, voluntary watchdog, the incompetent Press Complaints Commission, is not obvious. The Economist recently judged the PCC as not “so much toothless as blind” in investigating and policing the phone-hacking scandal (which is just about right) and called for the PCC to be put out of its misery.

If truly independent of the press and state, the new regulator would have no power and be accountable to nobody. That would amount to reinventing the PCC. If given the power to police the press, the new regulator’s existence would be a greater crime against humanity than all the phone-hackings put together.

There is no shortage of laws on the books to deter a resurgence of phone-hacking. Phone-hacking is against the law, as is ordering an employee to hack phones. Paying bribes to police is against the law. Destroying evidence is against the law. Perjury is against the law. If U.K. journalists violated these laws, U.K. police and U.K. courts have plenty of “regulatory” power to punish their “gross malpractice” without setting up a new version of the PCC.

In 1704, Daniel Defoe confronted an earlier set of censors with his pamphlet “An Essay on the Regulation of the Press.” He had it much worse: Back then, both the meddling state and the church hassled writers.

“To cure the ill use of liberty, with a deprivation of liberty,” Defoe wrote, “is like cutting off the leg to cure the gout in the toe, like expelling poison with too rank a poison, where both may struggle which poison shall prevail, but which soever prevails, the patient suffers.”

Will somebody pass along to Lewis that—especially in the Web era—there are no journalists? There are only acts of journalism. People who commit acts of journalism for a living deserve no special treatment from the government, such as shield laws. But neither do they deserve new laws or “voluntary” regulations that would blackball them.

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There’s another great line in the Defoe pamphlet that I couldn’t squeeze into this piece. “I know no nation in the world, whose government is not perfectly despotick, that ever makes preventive laws, ’tis enough to make laws to punish crimes when they are committed, and not to put it in the power of any single man, on pretence of preventing offences to commit worse.” Send your favorite Defoe lines to Shafer.Reuters@gmail.com or rescue me from the lonely island of my Twitter feed. (This RSS feed rings every time a new Shafer column goes live. This hand-built one rings every time a correction is filed.)

PHOTO: The last edition of News of the World newspaper goes on sale alongside other British Sunday newspapers in London July 9, 2011. REUTERS/Paul Hackett