Free speech wins! What about ethics?

Stephen Ward

Stephen WardAdvocates of a free press in Canada have reasons to cheer. Several recent complaints to human rights tribunals against journalists have failed.

The British Columbia Human Rights Commission set aside an ill-considered action against columnist Mark Steyn and Maclean’s magazine for his writings on Islam. In Alberta, Maclean’s magazine and Ezra Levant were successful against two complaints for Levant’s publication of the Danish cartoons of the Islamic prophet Muhammad.

As a free press supporter, why do I not feel like celebrating?

Legally, the reason is clear. As the Canadian Association of Journalists (CAJ) stated last week, more complaints will undoubtedly arise in the future. Free speech is not protected until these tribunals stop considering such complaints; or the Supreme Court of Canada rules on the constitutionality of this attempt to regulate journalism.

Ethically, things are not so clear. I regret that heated debates over the laws restraining publication overwhelmed a more ethical evaluation of offensive journalism. What didn’t get discussed sufficiently were questions such as: What is “offensive journalism” anyway? Why should journalists care if their reports offend? Are there better and worse forms of offensive journalism? Is freedom of the press an absolute value?

I think we should approach such a debate in four steps:

First step: Secure a large legal space for robust speech.

We should separate legal from ethical questions when we discuss free speech issues. Legally, a liberal democratic society needs a wide area reserved for controversial speech. The only legal restraints should be the criminal laws of hate speech, and the civil laws of libel. Toleration of offensive speech is a difficult but fundamental feature of an open society. A liberal society needs free speech like the body needs oxygen.

Second step: Recognize an ethical duty to offend in certain cases.

In my view, journalists have a legal right to offend. I also believe that, in some cases, journalists have an ethical duty to offend. They should not censor themselves because someone might be offended. I call this “offensive journalism in the public interest.” I am not talking about uninformed rantings or racist propaganda. I am talking about hard-hitting, well-researched investigations that are bound to offend someone. For example, in times of war, some people may be offended by critical, “unpatriotic” reportage. In the late 1980s, I and other reporters covered the Mount Cashel Orphanage inquiry into the abuse of male orphans by Catholic Christian Brothers. The coverage of the offensive details of the abuse prompted people to address a dark problem in Newfoundland society.

There are better and worse forms of offensive journalism.

If I were a newsroom editor, my question for a controversial article would not simply be: “Does this offend?” Instead, I would ask: Is it offensive journalism in the public interest, and have we used responsible methods to construct the report?

Third step: Debate before the public, not before tribunals.

If an article offends, let’s debate the complaint in the news media, according to the standards of journalism. Let’s open up a space in our media for views and counter-views. We should ask: How good is the article’s evidence? What facts are selected or ignored? What other perspectives are possible? What stereotypes are used? Is this offensive journalism in the public interest or is it a reckless attempt to insult or provoke?
Fourth step: Consider the role of journalism.

We need to step back and ask about the consequences of writing offensive journalism in a pluralistic society. What is the journalist’s role among contending groups and traditions? In such a society, media do affect how groups are perceived and treated. Journalists can’t say their words have no consequences for others; or that they don’t have to worry about what they say. A democracy needs more than a free press. It needs a free press that does not misrepresent minorities, propagate stereotypes, and support discriminatory attitudes.
In this global world, journalism should provide a forum for respectful and reasonable discussion, and to act as a bridge of understanding between cultures. If journalists abuse their press freedoms to mischaracterize others, they deserve to be criticized. We should defend the legality of controversial journalism while being ready to criticize it ethically.
I favour a journalism that encourages reasoned and reasonable discussion. But my love of fair reporting and of building cultural bridges does not insist on silencing those who may not want to build a bridge, or to speak in measured tones.
Of course, we should educate citizens to tolerate and respect each other. But, we should also teach that in a plural society to be offended should be expected.

J. A. Ward is the James E. Burgess Professor of Journalism Ethics in the School of Journalism and Mass Communications at the University of Wisconsin-Madison. He is the founding chair of the Canadian Association of Journalists’ (CAJ) ethics advisory committee and former director of the University of British Columbia’s Graduate School of Journalism.