Considering freedom of the press as a universal human right could lead to less and not more press freedom, a legal expert has argued.
Delivering a challenge to conventional thinking - and to positive law principles in the EU and US - Prof Frederick Schauer of Harvard University said viewing press freedom this way could also lead to less and not more legal empowerment for the often uncomfortable activities that enable the press to serve as a vital component of democratic governance.
Prof Schauer was guest speaker last night at the UCD/RTÉ Broadcasting, Society and the Law lecture in Belfield.
Unlike the right not to be tortured, freedom of the press has a contingent, instrumental and strategic character, he said. In other words, it is not simply good in itself, but it is good for what it enables.
He stressed, however, that the denial of press freedom as a human right does not mean it should not be a legal right. "It does not mean that it should not be a constitutional right. And it does not mean that it should not be a judicially enforceable right."
Prof Schauer, who is Frank Stanton Professor of the First Amendment at the John F Kennedy School of Government at Harvard, suggested his argument had implications for the question of privileges of confidentiality for journalists.
If we start with the assumption that freedom of the press is a natural human right, "it may be easy to conclude that the human right to freedom of the press does not include the creation of a journalist's privilege [not to reveal a source]".
"But if we start with the assumption that providing certain privileges to members of the institutional press may, under certain conditions and empirical assumptions, in certain countries be facilitative of socially valuable investigative journalism . . . then it might be far easier to reach the conclusion that this is a policy well worth having."
Ultimately, he said, if press freedom is understood as a human right, it may turn out that we will fail to protect those forms of press freedom that do not at all look like human rights. "In particular, the right to be annoying, the right to go overboard, the right to be a pest."
