If the US constitution and Karl Marx can agree on a free press, why can't we?

There is now to be one law for Hello! and another for Angling Times. One could imagine Thomas Jefferson shaking his head in utter bafflement

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One of the joys of the US constitution is its brevity. With just one sentence in the first amendment – “Congress shall make no law … abridging the freedom of speech, or of the press” – they ensured what still remains every American’s birthright. What would the Founding Fathers have thought had they been able to witness Monday’s dismal proceedings in the House of Commons?

First up was David Cameron announcing the draft Royal Charter to create a press regulator. Our monarch no longer holds sway across the Atlantic but here she still reigns supreme, to judge by the Charter’s first sentence: “We by Our Prerogative Royal of Our especial grace, certain knowledge and mere motion do by this Our Charter for Us, Our Heirs and Successors will, ordain and declare as follows: There shall be a body corporate known as the Recognition Panel …”

When the grace and mere motion have worked their magic, this panel will oversee the regulator’s main board. But anyone lacking Her Majesty’s “certain knowledge” may struggle to make sense of the system. There’s a Foundation Group, which will appoint a Regulatory Appointments Panel, which in turn appoints a Complaints Committee. Somewhere in the labyrinth are an Arbitral Arm, a Code Committee and a Standards and Compliance Arm. Why was the Charter so urgently necessary that it had to be hashed together in the early hours of the previous morning over pizza and Kit-Kats? Allow Cameron to explain: “What happened to the Dowlers, the McCanns, Christopher Jefferies and many other innocent people who had never sought the limelight was utterly despicable. It is right that we put in place a new system of press regulation to ensure that such appalling acts can never happen again. We should do that without further delay.”

Unequal before the law

The first of those sentences is unarguably true. The second is illogical tosh. How would the new regulator have prevented the News of the World from furtively and illegally hacking Milly Dowler’s phone? Yet the non-sequitur is continually repeated: it even had an outing in this newspaper’s editorial on Tuesday, which cited “the gross illegalities of phone hacking” as proof that the existing form of self-regulation wasn’t working.

One thing is certain: the new system won’t work either. It is riddled with inconsistencies, as became apparent after Cameron’s statement when the Culture Secretary, Maria Miller, added extra last-minute clauses to the Crime and Courts Bill. These are intended to bully what she calls “relevant publications” into signing up for the new regulator. Any that remain outside – Private Eye, say, or The Spectator – can be stung for “exemplary damages” if they are sued, purely to punish them for opting out of this supposedly voluntary scheme.

To compound the punishment, there is a startling new version of “no win, no fee”. Suppose a Russian oligarch sues Private Eye for libel and the court finds that the article was entirely true and justified. Nevertheless, according to Maria Miller, the Eye would have to pay all the billionaire’s costs as well as its own. The old principle of equality before the law has been casually jettisoned. There is now to be one law for The Independent, another for The Spectator. What is a “relevant publication” anyway? One could imagine Thomas Jefferson shaking his head in utter bafflement as Monday evening’s debate droned on, with Maria Miller solemnly informing the House that Hello! would have to be regulated, whereas Angling Times and Decanter magazine would not. Other exemptions from the new regime include student newspapers, scientific journals and “special interest, hobby and trade titles”. Defining “special interest” alone should keep the courts busy for years.

Most MPs prefaced their remarks this week with a self-congratulatory flourish disguised as high moral principle. As Cameron put it: “I and everyone in the House care deeply about a free press.” Where had I heard that before? I turned to Karl Marx’s first published newspaper article, a withering account of the 1842 debate in the Rhine Provincial Assembly on the freedom of the press. Naturally he criticised those who would keep newspapers shackled – but then, with an exasperated cry of “God save me from my friends!”, he was even more scathing about the self-styled liberals. Opponents of a free press were at least driven by a pathological emotion which lent conviction to their arguments, “whereas the defenders of the press in this Assembly have on the whole no real relation to what they are defending. They have never come to know freedom of the press as a vital need. For them it is a matter of the head, in which the heart plays no part”.

Leveson's inversion

MPs say that they have no wish to gag the press, but few of them care all that passionately about it. Some, indeed, regard themselves as fellow “victims”, along with the Dowlers, because their expenses fiddles were exposed. They can scarcely hide their glee that Fleet Street’s own misconduct has now given them the upper hand in the eternal struggle between the Third and Fourth Estate.

Here, too, I am reminded of Marx, who thought there was nothing wrong with German philosophy that couldn’t be cured by standing it on its head. The state does not rule the people; the people rule the state. God does not make man, man makes God. “The conversion of the subject into the predicate,” he wrote, “and of the predicate into the subject, the exchange of that which determines for that which is determined, is always the most immediate revolution.” How he would have boggled at the reactionary post-Leveson inversion that transforms “the press holds government to account” into “government holds the press to account”.

As for the Founding Fathers, this week’s wretched dégringolade would have left them profoundly relieved that they threw off the British yoke all those years ago. We now have teams of parliamentary draughtsmen wrestling with the meaning of “news-related material” and “relevant publications”; across the Atlantic they make do with the bracing simple clarity of the first amendment.

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