Witnessed from across the Atlantic, Britain's heated debate over Justice Brian Leveson's inquiry into the press after a phone-hacking scandal must be startling.
Surely such a venerable democracy would never contemplate using legislation to regulate journalists? The notion is no doubt unthinkable to American citizens, whose freedoms are protected by the Bill of Rights.
Well, Brits are considering ways to regulate the press, and they should. I say this as a singer and songwriter who believes in free speech, because this isn't about censorship. It's about two concepts of freedom that derive from our very different histories.
The American concept of freedom, as expressed in the Constitution, is relatively new. The United States was established in the late 18th century by a radical republican settlement whose authors sought to be free men in their own dominion, no longer subject to taxation and rule by a distant empire. That urge to be free from central-government control still animates American democracy.
We British have a different tradition. Our current, unwritten constitution dates to 1689. It is only the most recent in a series of settlements that have their roots in the great dynastic struggles of the Middle Ages, and which established the rights of British citizens.
The first of these settlements produced the Magna Carta in 1215, when England's barons, tired of King John's tyranny, forced him to sign a document limiting the monarch's power. Another settlement came in the 16th century, when Henry VIII broke from the authority of the pope in Rome. This was part of Europe's Reformation, a process of shifting from Catholicism to Protestantism that, among other things, stimulated nationalism and the spread of the printing press.
The third great settlement emerged from the English civil wars that pitted Crown against Parliament in the mid-17th century. Once again the English railed against the tyrannical power of a monarch who believed he was above the law. Charles I lost that struggle, and England briefly became a republic, until the monarchy returned. Even then the question of who ruled was unresolved and Parliament staged a coup, ousting James II in favor of the Dutch leader, William of Orange.
Before he took the throne in 1689, William was required to sign a Bill of Rights, guaranteeing parliamentary power and privileges. That document, a division of powers between the Crown and Parliament, gave birth to the constitutional monarchy that still underpins the British state.
What is significant about these great settlements is that they all occurred before the modern notion of freedom was established. Before Thomas Paine asserted that freedom was vested in individual liberty, the British found their freedom through their collective struggle to hold those in power to account. That's a crucial difference.
To this day in the U.S., the concept of freedom is most loudly expressed by those who wish to be free from the institutions of society — freedom from taxation, regulation and the impositions of elites. On this side of the pond, it is more often articulated by those who wish to be free to participate in society — to have freedom from poverty, treatable illness and discrimination.
These two ideas of freedom explain why Americans and Europeans (and the British are Europeans) sometimes look at each other's choices in bafflement. Why do Europeans not enjoy the right to carry a gun? Why do Americans not enjoy the right to free health care?
The fault line seems to run between those who emphasize individual liberty and those who stress social responsibility. Both strands exist in Britain. With Leveson's inquiry into the ethics and practices of the press after the News Corp. phone- hacking case, these differing approaches to freedom have sought to pull the report's conclusions in opposing directions.
Newspaper proprietors and some politicians, for example, have reacted against Leveson's proposal to base a new press regulator on laws. They say that freedom of the press offers us protection from tyranny and that any legislation would undermine this protection.
Yet in order to perform that important duty, the newspapers must have the trust of the people. Sadly, in the past decade, an ever more powerful group of proprietors has betrayed that trust to such an extent that one of our newspapers, News Corp.’s News of the World, was put down by its owner like a dangerous dog.
Appalled by the illegal hacking, false accusations and prurient invasions of privacy that Leveson's 2,000-page report catalogs, the British people — as we have done throughout our history — sought a new settlement. This time it isn't with kings John, Charles and William or the Catholic Church, it's with the press. The new settlement that Leveson outlines would hold newspapers and their owners to account, while enshrining their rights in statute for the first time.
Over the past 50 years, the British press has been regulated by a commission consisting of representatives of the major publishers. This self-regulation manifestly failed to rein in the worst excesses of checkbook journalism. Some editors clearly adopted a laissez-faire attitude toward the commission's voluntary Code of Practice. Under the protection afforded a free press, they mistook liberty for license.
Leveson's report calls for the press to set up a new regulator that is independent from Parliament and the newspaper industry — a recommendation that editors have signed on to, albeit reluctantly.
The trouble is that the British people know they've been here before: Leveson's report was the sixth inquiry into press behavior since World War II. So what guarantees do we have that the press will no longer bend the rules to suit itself? To ensure that every editor adheres to a new Code of Practice for British journalists, Leveson suggests that it be backed up by legislation.
This debate is over how we respond when those who claim to protect us from tyranny act like tyrants themselves. It is the same territory on which all our great struggles for liberty have been played out. Magna Carta established that no one in England is above the law. This fundamental principle should be at the heart of good journalism, as summed up in the old maxim that the job of a newspaper is to comfort the afflicted and afflict the comfortable.
What to do when the newspapers themselves constantly act as if they are above the law? Without the ability to hold the most powerful people in our society to account, our freedoms will always be at the mercy of tyrants — and that includes the press. Democracy itself is a product of the endless struggle to strike a balance between freedom and accountability. Leveson's recommendations are part of that balancing act; they are not an attack on free speech.