McDowell's troubling questions and confusions

On 9 February Minister for Justice Michael McDowell delivered a challenging lecture to the media in Ireland, which got surprisingly little media attention. It raised issues pressingly relevant to the media in general and to the role of the media in politics. Here we reproduce some of the key elements of the lecture, along with a commentary

It may well suit us from an economic point of view to regard media activity as the doings of a number of competitive enterprises. But between them, the mass media have an effective oligopoly on news, commentary, ideas, social innovation and publicly expressed opinion. Apart from door to door canvassing, leaflet distribution mail shots and the long extinct "public rally", the media provides the central modern arena of democratic politics. Whoever controls media content, in large measure controls our democratic debate and, in effect, the main workings of our democracy.

This is a significant acknowledgement: that it is not the politicians, let alone the electorate, that controls our "democratic debate", rather it is the media, now largely owed and controlled by powerful vested interests, in many instances, foreign corporate vested interests. It raises the obvious question: in what way can such a debate be deemed "democratic" if the agenda for that debate is not set by the participants or by the listeners?

There has been a paradigm shift from parliament to radio and TV as the focus or centre of political debate. In the print media, by contrast, parliamentary coverage is under pressure. From a democratic point of view, therefore, it matters crucially who owns and controls the media and how the media owners exercise that ownership and control.

Yes, an obvious corollary of the point made earlier but what has he or this Government ever suggested we do about this? There clearly is no disposition to do anything about the concentration of media ownership, in part, one suspects, because of fear what the corporate media barons would do in retaliation.

Given that the Constitution on which the Irish state is founded acknowledges that themedia are of grave importance to the very essence and existence of "Ireland [as] a sovereign, independent democratic state", we cannot simply relegate the output of the media to the status of economic commodity or service. By the same token, we cannot allow the media or their owners to relegate themselves to that status either. If, as assuredly is the case, the media have constitutional rights in Ireland, they also have constitutional duties. One such duty (as defined by the Constitution) is to educate public opinion.

There is no constitutional requirement on the media to "educate" public opinion. What the Constitution says in Article 40: 6: 1 is:

"The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. "The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State".

There is nothing here about the media having a "duty" to "educate" public opinion. No decision of any court has ever said there was such a duty. Nobody ever before, as far as I am aware, has ever said there was such a duty under the Constitution.

Another duty is to uphold the constitutional rights of the citizens, including the constitutionally protected rights to a good name and to privacy. Another is to uphold public order and morality, at least to the extent of not undermining them. Yet another is to uphold the authority of the Irish state and, necessarily, the Constitution on which that state is based. And, of course, there is a duty to preserve their rightful liberty of freedom of expression.

This is more nonsense. There is no "duty" imposed by the Constitution on the media to "uphold" the Constitutional rights of the citizen. The only such duty imposed by the Constitution is on the State. Of course there is a constraint on the media in the Constitution in the exercise of its rightful freedom of expression and among the constraints are those to do with the good name of the citizen, the privacy of the citizen (not spelt out in the Constitution but implied) and the constraints to do with public order and morality, interference with the course of justice and other matters. But the idea that the media has the duties Michael McDowell says it has, under the Constitution, is unfounded.

Of course many of us would argue that the role of the media is to inform citizens to enable them to pay their role as sovereigns in a democratic state but the Constitution does not impose a duty to do that.

The State, I think, has a correlative right to prevent the "commodification" of the media to the point where they lose out on their role as educators of public opinion or in their capacity to function as organs of public opinion. Opinions, ideas and free speech are not mere commodities. Media owners who enter the Irish media market from within or without must do so in a way that accepts the Constitutional duties that I have mentioned. In political and social terms, they are not buying into, or establishing a chain, of hamburger restaurants.

More nonsense. Of course many of would wish the media would perceive its role in this way but as for there being a Constitutional duty? Absolutely no foundation for that contention. And anyway, if Michael McDowell is right about there being such a Constitutional "duty" on the part of the media what is he doing to ensure that the media discharges its Constitutional duty? And in what way does he think he could do that? Apply to the courts for a order requiring, say the Sun, to fulfil is Constitutional duty to "educate" public opinion?

There is I think a Constitutional mandate for the State to remain a significant guarantor through public service broadcasting of the media role as organs of public opinion".

Now here he may have a point, an original and interesting one and it would be interesting to have this point elaborated. The point presumably being – and I am speculating here for I do not know what was in his mind nor have I adverted to his point before – that the bias engendered by a media that is prone to "commodification" and heedless of the role envisaged in the Constitution for the media, should be counteracted by a vigorous public service media that was impervious to such infections and independent of the vested interests, to which the private media are subjected.

This is radical and interesting stuff but he contradicts this later in the lecture.

Likewise, I see a Constitutional mandate for a policy of diverse media ownership and for a policy designed to ensure that the independent Irish democracy has a set of independent media which adequately serve its particular needs.

Now we seem to be getting somewhere. A promise to deal with the issue of concentration of media ownership!

But the need to compete in an inevitably globalised media market also suggests that Irish media be robust enough to fend off competition from abroad in terms of quality and value for money.

Promise withdrawn. He raises a serious issue and when confronted with it, backs off and offers the standard corporate media justification for concentration of media ownership, thereby defeating much of the rest he said.

Constitutional jurisprudence now clearly states that public resources cannot be used to attempt to affect the outcome of referenda or elections. Within the parameters of the Constitution, the State must be neutral as to the outcome of elections and referenda.

Quite right and RTÉ has not adequately applied itself to this requirement. For instance in allocating broadcast time during election campaigns partly on the basis of how parties fared in the previous election it is siding with the status quo in breach of its obligations of neutrality. It is refreshing that Michael McDowell is insisting on fairness here.

Then there is the whole issue of corporate accountability and corporate media agendas. With a few honourable exceptions, there is little or no analysis of corporate accountability or corporate agendas in the media world. "Dog doesn't eat dog". TV stations simply don't analyse the political prejudices or perspectives of newspapers.

Instead, the media choose to take each other at face value. This "non-aggression pact" suits all parties concerned except perhaps the public. Public service broadcasting journalism does not have to adopt a close, seamless relationship with the journalism of the print media. It can and should be different and original.

He is absolutely right. There is an absence of analysis of how the media in general – and in this instance the privately owned corporate media – sets the agenda largely to fit its own corporate interests. He is right. There should be vigorous analysis of this in public service broadcasting and the absence of it is a serious deficiency. For instance, the extent to which the media now is the sponsor of what is known as the neo-liberal agenda: low taxes, reduced public services, privatisations that enrich an elite, while the vulnerable, the disadvantaged and the poor are largely from the rewards of economic success. Maybe this is not what he has in mind but the thrust of this remarks is well taken.

This is particularly important in the context of a tendency for the media to want to act as political players. The privately owned and controlled media are entirely free to make and shape their own agendas and ambitions. Not so for the publicly owned and licensed broadcast media. I fear that in the area of democratic dialogue, free speech, and the education of public opinion that public service broadcast journalism is in danger of losing its way. There are signs that a minority of journalists and programme makers have decided they want to be political players that their legal obligations of impartiality and objectivity are boring, outdated, style-cramping counsels of perfection. There are signs that some of them want to be agenda setters. There are signs that some feel that they are better at choosing the battlefields for elected politicians than are those politicians themselves.

At the beginning of this speech he said: "Whoever controls media content, in large measure controls our democratic debate and, in effect, the main workings of our democracy". In other words it was not the politicians who were controlling our democratic debate it was the corporate media. He seemed not to like this, presumably because the corporate media was likely to shape the democratic debate into constrained parameters, that reflected their conscious or unconscious interests and against the interests of the public at large.

He argued that the public service media should not take its cue from the private media and should be critical of the private media. But how does this fit with an objection to the public service media seeking to establish an independent agenda, seeking to ask different questions, seeking to shape the democratic debate outside the parameters decided by the private corporate media?

He hints public service media should conform to the agenda set by politicians themselves. But he has already conceded that politicians do not set the agenda, it is the private media.

Is he suggesting that public service media should not raise, in the course of an election campaign the following issues unless raised by the politicians:

* Evidence that his citizenship referendum was sponsored not by any genuine concerns about overcrowding in maternity hospitals but an impulse to play the race card in the local and European elections of June 2004.

* His indifference to the explosive revelations and recommendations of the first report of the Morris Tribunal and his subsequent failure to deal with the central issues to do with the culture of "cover-up" and concealment within the force.

* His failure to have removed from the Garda force Gardaí against whom very serious findings were made by the Morris Tribunal.

* The evidence of deep-seated inequality in society as shown in the report of the Institute of Public Health on inequalities and mortalities, showing that the incidence of premature death on the part of people in the lower socio-economic groups is a multiple – often a high multiple – of people in the higher socio-economic groups.

* Evidence that he has deliberately turned a blind eye to the use of Shannon by the CIA in its programme of illegally kidnapping terror suspects and transporting them to places of torture (the evidence is not that the plans though Shannon have had such suspects on board, rather than the planes used for this criminal activity have been facilitated at Shannon).

* Evidence of curious facilitation by the Government of the bid involving Tony O'Reilly's Valentia for Eircom, when there was evidence that, were that bid successful, the necessary investment in broadband infrastructure would not happen (indeed this is what occurred).

Is he of the view that the public service media, which should be independent of the private corporate media, should succumb to the confines of the democratic debate set by the private media, or raise issues independently in the public interest?