History and Philosophy of Media 22 May, 2012All facets of the cultural industries have been irreparably altered by the imperatives ofneoliberalism. A globalised economy and time poor populous has produced a commercialmedia unwilling or unable to challenge the institutions that define this “new” modernity. AsMax Horkheimer and Theodore Adorno record; “culture today is infecting everything withsameness” (Horkheimer et al, 2002); creating an uncreative, apathetic populous and ensuringthe continued dominance of established economic and political paradigms (Herman et al, 1988).As the “Information Age” dawns, there is a sense that the hegemonic conceptions of reality thatdefine the present coupled with the biopolitical forms of control and domination that define thenetwork (Galloway, 2004, Beer, 2009) will create a society in which deviation from the norm isintrinsically accompanied by exclusion. Thus in the “Networked Society”: “The ruler no longer says: “Either you think as I do or you die.” He says: “You are free not to think as I do; your life, your property - all that you shall keep. But from this day on you will be a stranger among us.” Anyone who does not conform is condemned to an economic impotence which is prolonged in the intellectual powerlessness of the eccentric loner” (Horkheimer et al, 2002)As the internet and other forms of networked communication revolutionise the media sphere,the biopolitical forms of control intrinsic to such technologies threaten to limit the potential ofnew media to “liberate”. The lack of individual agency that defines postmodernity crystallisesthe similarities that exist between contemporary Western civilization the societies of theEnlightenment. The democratisation of information and development of a self-perceived publicsphere (the Republic of Letters) that defined the 15th Century served only to establish newforms of control; political authority replaced with the authority of the rationalism and the printedword (Burchell, 2003). The same is true in the Network Society; despite the fervid optimismsurrounding the popularization of the internet, a “moral legislator” (in the form of protocol andalgorithm) continues to permeate cyberspace inhibiting truly “free” communications (Burchell,2003). The internet is thus simultaneously liberator and overlord; “All technologies can be used for oppression as much as for liberation... networks can connect and disconnect, include and exclude, depending on their programs and on their configuration” (Castells, 2009)Given new technologies tendency to reiterate existing paradigms, as Information Age dawns,it seems unlikely that the contemporary citizen will witness an extension of personal liberties.However, the acceleration of communication processes will irreparably alter the politicalprocess, as liberal democracy adapts to the increasingly dynamic and pragmatic public sphere. As an era of automated, mechanised control dawns, media content is transitionedinto commodity; created efficiently with the explicit purpose of being consumed promptly.The centralisation of ownership of established media forms coupled with the expansion ofcapitalism into ‘cyberspace’ has resulted in an altered media landscape where the spectacular,sensationalist and graphic reign (Debord, 1967). Replacing political consciousness with apathy(Adorno, 1963) the contemporary commercial media no longer function as the Fourth Estate ofDemocracy. Rather, “enlightenment” (the triumph of rationality and the scientific method) andthe expansion of the cultural industries has eroded society’s moral basis, creating a vacuousand amoral populous (Adorno, 1963). Such a trend is reflected in the nature of media content;the Golden Era of Journalism defined by a commitment to the public interest, replaced with a
History and Philosophy of Media 22 May, 2012predominantly commercial media that seeks to maximise profits.As the nature of media content evolves with imperatives of postmodernity, the role of journalismin the democratic process is significantly altered. Criticism of this trend pervades the politicaland academic establishments of contemporary western nation states. Malcolm Turnbull,shadow Minister of Communications, recently reiterated that in future journalism will bedescribed as “infotainment” (Turnbull, 2011); coverage of politics reduced to what formerFinance Minister Lindsay Tanner was to term the “sideshow” (Tanner, 2011). There is relativeconsensus that in a hypercommercialised media environment quality investigative journalism(and perhaps quality journalism more generally) will become an unsustainable endeavor(Birnbauer, 2011). The “crisis of credibility” that plagues contemporary print media (Carlson, 2011),especially within the United Kingdom, is in part the product of journalism’s increasing relianceon the anonymous source. As Matt Carlson records, the use of the anonymous source extendsthe level of responsibility assigned to journalist and news organisation (Carlson, 2011). As theviews are unattributed a particular individual or public figure, the journalist, as author, takesaccountability for the opinions articulated in the relevant media content. Thus in the new mediaenvironment, the journalist is no longer the passive conveyer of information; transformedinto quasi source (Carlson, 2011), a problematic transition given the profession’s evangelicalcommitment to the problematic ethic of “objectivity”. The use of anonymous sources inherentlycompromises the credibility and integrity of coverage (Kimball, 2011), yet the vast majority ofjournalists maintain their commitment to this ethically fraught practice; a consequence of themedia industries prevailing belief that if source anonymity was discontinued, “good journalism”would cease to exist. “Journalism that goes beyond the media release and spin would all but die if the countless background and off-the-record conversations had by journalists each day were at risk of being made public” (Simons, 2012)The use of the anonymous/unattributed/unnamed/confidential source does not occur within apolitical vacuum. Thus the cultural and media trends described above, generated predominantlyby the economic reform which defined the Reagan/Thatcher era, illuminate the some of thecomplex contextual conditions that nurture the continued use of the anonymous source incontemporary media content. The imperatives of the commercial environment and an increasingly globalisedmedia sphere have resulted in the intensification of existing conflicts between media, judiciaryand government. The paradoxical relationship between journalism and the institutionalstructures of the nation state (journalism dependent upon government information whilstsimultaneously acting as government “watchdog”) contributes to the perception that the ethicalimperatives of the media, judiciary and government are inconsolable. A 2010 policy documentfrom the Australian Press Council typifies this tendency, highlighting not only the cause ofconflict between press and government but also the apparent link between such conflict and theuse of anonymous sources. “Governments are not always cooperative in providing the press with information that gives an objective and complete picture of government activity, free from distortion. There are instances when such a complete picture can only be ascertained by relying on confidential sources. Such sources usually have unique knowledge of the internal
History and Philosophy of Media 22 May, 2012 workings of organisations, knowledge which is invaluable to journalists seeking to keep these organisations accountable” (Disney, 2010)This policy document equates the use of anonymous sources with inept government, politicalinstability and corruption. Reporting methods thus become symbolic of the vitality of thedemocratic process within the nation state. Michael Sheehy’s analysis of the use of unnamedsources by the Washington Post between 1970 and 2000 (Sheehy, 2008) conforms to suchtrend, periods of public insecurity, government secrecy (such as the Cold War Period) andpolitical instability (the Monica Lewinsky Scandal) paralleled by a marked increase in the use ofanonymous sources. Political culture and the modes of investigation favored by journalists areintrinsically linked; “The ups and downs [in the use of unnamed sources are much more a reflection of changing cultures of the various administrations particularly that we cover, and in the context of Congress, the changing culture of Congress” (Charles Kaiser, 2005 in Sheehy, 2008)Consequently, fluctuation in the frequency of reporting that uses anonymous sources must beviewed as politically significant; the media/source relationship of a particular era signifying thenature of a particular political administration. A number of high profile American court cases have sought to define the legalobligations associated with modern journalism’s use of anonymous sources. Throughout the1970s a number of important cases redefined the relationship between the press and judiciary.Two significant rulings by the Supreme Court in the early 1970s systematically restricted theability of journalists to protect confidential sources; Branzburg vs. Hayes and Zurcher vs.Stanford Daily (Time, 1978). The case laws created by these rulings (that journalists could becompelled to testify in front of grand juries and news rooms could be searched by police)resulted in the relationship between judiciary and press becoming increasingly hostile (Time,1978). Shield laws were tested again in the late 1970s when Myron Farber, a reporter for TheNew York Times was jailed for forty days for refusing to surrender interview tapes and notesrelevant to the now notorious “Dr. X” case.The “Dr. X” Case (the trial of Dr. Mario E. Jascalevich) remains an important example of the wayin which the ethic of press freedom can be subjugated in favour of the individual’s right to justiceand a fair trial. However this case cannot simply be reduced to a collision of the First and SixthAmendments (Griffith, 1978); a sentiment reiterated by Richard Harris in his 1982 article entitled“The (Mis) Trials of Myron Farber” (Harris, 1982). Harris’ suggests that the constitutional rightsof Farber were repeatedly violated over the course of Jascalevich’s trial, Jascalevich’s defenserepeatedly issuing Farber with “fishing subpoenas”: “No competent court in this country would uphold subpoenas like those served on Farber and The Times. Under the law, subpoenas must be reasonably specific, and the items sought must be shown to be relevant and material to the case at hand; equally important, anyone subpoenaed has a legal right to a court hearing to determine whether the subpoena meets these standards” (Harris, 1982)For Harris, Farber’s profession contributed to the Supreme Court’s willingness to grant illegalsubpoenas (Harris, 1982). The judiciaries’ willingness to abandon constitutional norms inthis case is symptomatic of the institutionalised perception that any information provided tothe media is “public information”. Thus, in the eyes of the law Myron Farber ceased to be
History and Philosophy of Media 22 May, 2012an individual, instead transitioned into a quasi media organization; and was investigated,questioned and subpoenaed as such.However, as Jeffrey Olen records, despite having the support of the public (Time, 1978), MyronFarber was incapable of demonstrating that the maintenance of source confidentiality wasnecessary: “Farber’s adamance provoked much controversy, but given the facts of the case, normal moral reasoning supports him. Having promised confidentiality he was obliged to protect his sources from what is often called “a fishing expedition” – even during a criminal trial. On the other hand, had there been a showing of necessity, the situation would have been different. A man on trial for murder cannot be denied evidence required for his defense” (Olen, 1988, emphasis added)Farber’s failure to substantiate claims that the confidential sources featured in The Timesarticles would be significantly affected by identification, resulted in the rights of Dr. Mario E.Jascalevich favoured over those of Farber’s confidential sources. Exemplifying the way inwhich ethical imperatives can occasionally conflict, the “Dr. X” case exhibits the tendency ofthe judiciary to favour the rights of the individual (Dr. Mario E. Jascalevich) over those of thecollective (Myron Farber’s confidential sources). Olen suggests that this is a consequence ofthe fact that the individual (most frequently the defendant) has the most at stake in criminalproceedings; their agency, freedom and occasionally, life (Olen, 1988). The ethical standpointof the judiciary is crystallized by the “Dr. X” Case; the right of media organizations to protectanonymous sources secondary to the right of the individual to a fair trial.Following the imprisonment of Myron Farber, politically moderate media organizationsattempted to create an alternative cultural paradigm in which the ethical imperatives of thejudiciary and the media could coexist in relative harmony. There was a genuine belief that ifthe commercial media altered sourcing practices (relying less on unattributed sources) and thejudiciary displayed improved flexibility, the imperatives of journalism and justice would no longerconflict. As New York Times columnist Anthony Lewis records: “I happen to believe that the press’s need to protect its sources and editorial process has to be balanced against the constitutional right to a fair trial. A defendant has an especially strong claim to evidence from a reporter when, as in this case, stories led to his prosecution. But at a minimum a reporter and his notes should not be subpoenaed casually. Before evidence is compelled, there should be a showing that it is likely to be relevant, necessary, and unobtainable by other means” (Anthony Lewis in Olen, 1988)However the compromises envisioned by Lewis have never eventuated; and thus conflictbetween the press and the legal institutions of the nationstate continue into the present. At present, the existing moral ethos of the Australian media is being reassessed;the consequence of a recent judgment by the Supreme Court of New South Wales. The Liu vThe Age judgment has altered the legal status of confidential sources in the modern Australiannationstate, with Justice J. McCallum ruling that journalists Richard Baker, Nick McKenzie andPhilip Dorling must reveal the confidential source behind the 2010 article “Fitzgibbon’s $150,000from Chinese developer” (McKenzie et al, 2010). Although The Age has since appealed thedecision (Simons, 2012), the verdict has set a precedent; namely that journalistic anonymity isinherently fragile, vulnerable to the demands of the powerful legal and political institutions of the
History and Philosophy of Media 22 May, 2012nation state.Justice J. McCallum’s judgment, infused with Kantian ideology, exhibits a belief that the law isthe sublime ethic. Therefore, the law, in this case the Australian Constitution, must be upheld,despite the fact that it violates many of the ethical principles endorsed by the mainstream mediaof Australia. Thus the Liu v The Age case exemplifies the ethics of journalism being subjugatedin favour of the entrenched socio-cultural ethic of the law. Indeed, Justice McCallum suggeststhat the journalisms commitment to, and protection of, unattributed sources may itself be“unethical”: “… in my view an absolute and immutable protection of confidentiality wherever demanded by a journalist’s source (in cases of political discussion) would itself be inimical to the maintenance of the system of government required by the constitution. It would expose politicians and others involved in government and politics to the risk of false and malicious attack from their detractors without recourse or remedy. To allow such sources to shield themselves under the respectable cloak of investigative journalism would be contrary to the high ideals of a free press.” (McCallum, 2012)The claims made by anonymous sources are often difficult to qualify, a reality that can result inthe distribution of misinformation to the public (Carlson, 2011). Justice McCallum rationalizesthe Liu v The Age judgment as a victory for “good”, “objective” journalismPaul Routledge, a political journalist in the United Kingdom suggests that anonymous sourcesare frequently used to manipulate the mediaIn many ways, the Liu vs. The Age case epitomizes the tendency of Western societies to favourthe rights of the individual over those of the collective.It is interesting to note, however, that the Liu v. The Age case has occurred at a time when thepolitical onus is on the protection of journalists sources.