Jack Shafer

Giving testimony yesterday at the Leveson phone-hacking inquiry (PDF) in London, former News of the World features editor Paul McMullan took the only position on the scandal not yet occupied: That of an unrepentant tabloid journalist.

Don’t blame tabloid excesses on tabloid journalists, McMullan held, as he blithely parried the panel’s questions about how he could justify the tabloid press’s phone-hacking practices, its surveillance of subjects, and other intrusions into people’s lives.

Blame tabloid readers, McMullan said.

“Circulation defines what is the public interest. I see no distinction between what the public is interested in and the public interest,” he said. “The reason why News of the World sold 5 million copies is that there were 5 million thinking people and that’s what they wanted to read.”

Continuing his blame-the-readers-not-me tack, he said, “[Readers] are the judge and the jury of what is in the paper, and if they don’t like it—if they don’t like the fact that you’ve written a story about Charlotte Church’s father having two-in-a-bed—sorry, three-in-a-bed on cocaine, then they’ll simply stop buying the product.”

Asked by Lord Justice Leveson if the ends justified the means, McMullan let his interrogator have it. “Yes, I think so,” he said. “All I’ve ever tried to do is write truthful articles and to use any means necessary to try and get to the truth.”

Although the Leveson committee was asking the questions and not giving the answers, it seemed stumped by McMullan’s intransigence, even when he offered that “Privacy is the space that bad people need to do bad things in. Privacy is particularly good for pedophiles. … It brings out the worst in people.”

Obviously, just because News of the World—which owner Rupert Murdoch closed this summer as the phone-hacking scandal crested—commanded 5 million paying customers can’t justify the serial law-breaking attributed to its journalists. But McMullan’s moxie temporarily moved the topic to an area of non-consensus: How grounded to reality are the privacy expectations of politicians, sports stars, celebrities, and civilians?

In a recent Journal of Media Law & Ethics (PDF) article about the Max Mosley case, scholar Stephen Bates notes that the British law only recently embraced privacy.

“A dozen years ago, British reporters were less vulnerable to invasion-of-privacy suits than American reporters. Today, British reporters are far more vulnerable. Indeed, privacy lawsuits are outnumbering libel ones,” Bates writes. “As a result, freedom of the press in Britain has been constricted.”

Bates, who is a lawyer, surmises that the news coverage lavished on adulterers Mark Sanford, John Ensign, John Edwards, and Tiger Woods would have given all four randy fellows standing to sue for invasion of privacy under British law.

Sounding a little like McMullan (but without justifying law-breaking or other tabloid excesses), Bates writes:

The press does more than help create informed, active citizens. It seeks not merely to serve the public interest; it also seeks to serve the public’s interests, including interest in celebrities and scandals. The news media entertain as well as inform, and they serve the working class—the principal audience of tabloids—as well as the middle and upper classes. Daniel Bell and Irving Kristol once wrote, “It is probable that as much mischief has been perpetrated upon the human race in the name of ‘the public interest’ as in the name of anything else.”

The appetite for scandal news, both here and in the U.K., is so insatiable that tabloid journalists are forever creating or “discovering” new celebrities whose peccadilloes—especially sexual ones—can be reported. How else to explain the rise of the Kardashians? This appetite has no automatic right to a meal but the healthy market for the “red top” tabs in the U.K. and their U.S. counterparts—Star and Us, TV shows like TMZ, and celebrity columns in every U.S. daily newspaper—confirms how mainstream and widespread the consumption of gossip is. McMullan is right: The demand so demonstrably creates the supply that it requires us to pause long enough to figure out why we so love anything approaching a scandal, even if the exposé doesn’t contribute to the “public interest.”

Who among us will turn down gossip, especially of a sexual nature, about classmates, officemates, casual acquaintances, Hollywood actors, politicians, and all the way up to complete strangers? Bates helps us understand when he quotes C. Edwin Baker: “Gossip is an essential means of communication.” We crave intimate details of others’ lives because they give us a sense of power over them; because the intimate details of others’ lives help us understand our own; because the intimate details of others’ lives give us social currency and social standing. “Scandal news, like literature, illuminates human nature,” Bates writes.

Again, none of this is meant to defend reporters who break the law. But as the Leveson inquiry vectors from investigating law-breaking toward invasion of privacy questions, the closer it comes to criminalizing journalism. Most celebrity actors and musicians employ publicists to cultivate press for them, seeking, as Bates puts it, “positive publicity for their private lives,” as he approvingly quotes this passage from a 2009 legal case: “As there should be ‘truth in advertising,’ so there should be truth in publicity. The public should not be misled.”

If the Leveson inquiry ends up inspiring new, tougher privacy laws in the U.K., celebrities might sleep better. But so will U.K. government and corporate officials, and that’s not good. I encourage you to read the Bates article, not just because it’s learned and wise, but because it summarizes the issues in its kicker by quoting this splendid passage from Tom Stoppard:

“Junk journalism is the evidence of a society that has got at least one thing right, that there should be nobody with the power to dictate where responsible journalism begins.”

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Ivan Lewis energized freethinkers everywhere today by proposing that the naughty U.K. press be reined in by “a new system of independent regulation.” In his speech to the Labour Party conference, the Labour shadow culture secretary called for the press to “consider whether people guilty of gross malpractice should be struck off,” by which he meant banned from the practice of journalism.

The U.K. press immediately roared back—all but accusing Lewis of campaigning for a cabinet position as Minister of Censorship. Lewis then retreated on Twitter. “I said industry should consider whether gross malpractice should lead to a journo being struck off and i oppose state oversight of press,” he wrote.

By the end of the day, Lewis was backpedaling faster, telling the BBC, “I regret the fact that there has been a response to something that I didn’t say.”

Yeah, yeah, Ivan, but I think we got your message the first time: When a scandal swallows police, newspaper executives, media moguls, private detectives, the prime minister, and journalists, your remedy would not be jail time for those who broke existing laws. What you want is a special “independent” body that would ostracize and shun the rotten journalists. Maybe even build a leper colony for them.

But as Helen Lewis-Hasteley writes on the New Statesman website today, no mechanism exists in the U.K. to disbar or otherwise “strike off” a rotten journalist. The news profession doesn’t accredit journalists—they’re not like doctors or lawyers or accountants with specific professional qualifications! It follows that there’s no industry-wide consensus on what constitutes gross journalistic malpractice. Likewise, the U.K. has no power to create a registry to prevent rotten journalists from practicing their craft, which means implementing Lewis’ modest proposal  would require a law spanning all print and electric media. You’d have to govern the U.K. the way the Communist Party governs China if you wanted to appoint guardians to stand at the gates of the Web to prevent shamed individuals from setting up blogs or otherwise expressing themselves.

Even if such a registry of banned journalists were conjured into existence, posits Lewis-Hasteley, how would it be enforced? She writes:

If we look at the countries around the world where the government keeps such a register, I bet they’re not the ones you’d regard as shining beacons of democracy and enlightenment. Who would administer the register? What would the appeals procedure be? How much would it cost to join?

Maybe Lewis can figure this all out by staging a fact-finding mission for himself and other members of Parliament to Zimbabwe and Nicaragua, where the state licenses (PDF) journalists.

“Will [Lewis] jam bloggers from outside Britain?” asks Roy Greenslade in the Guardian. “Are we to take the Chinese path by setting up a battery of digital censors located in some Whitehall technology centre?”

Lewis isn’t alone in calling for a new regulatory apparatus. Tory Prime Minister David Cameron made similar noises in July—sans the “striking off” innovation. Cameron called for the establishment of a new regulatory body that would be “independent” of both the press and the government. How the new watchdog agency Lewis and Cameron advocate would differ from the current, voluntary watchdog, the incompetent Press Complaints Commission, is not obvious. The Economist recently judged the PCC as not “so much toothless as blind” in investigating and policing the phone-hacking scandal (which is just about right) and called for the PCC to be put out of its misery.

If truly independent of the press and state, the new regulator would have no power and be accountable to nobody. That would amount to reinventing the PCC. If given the power to police the press, the new regulator’s existence would be a greater crime against humanity than all the phone-hackings put together.

There is no shortage of laws on the books to deter a resurgence of phone-hacking. Phone-hacking is against the law, as is ordering an employee to hack phones. Paying bribes to police is against the law. Destroying evidence is against the law. Perjury is against the law. If U.K. journalists violated these laws, U.K. police and U.K. courts have plenty of “regulatory” power to punish their “gross malpractice” without setting up a new version of the PCC.

In 1704, Daniel Defoe confronted an earlier set of censors with his pamphlet “An Essay on the Regulation of the Press.” He had it much worse: Back then, both the meddling state and the church hassled writers.

“To cure the ill use of liberty, with a deprivation of liberty,” Defoe wrote, “is like cutting off the leg to cure the gout in the toe, like expelling poison with too rank a poison, where both may struggle which poison shall prevail, but which soever prevails, the patient suffers.”

Will somebody pass along to Lewis that—especially in the Web era—there are no journalists? There are only acts of journalism. People who commit acts of journalism for a living deserve no special treatment from the government, such as shield laws. But neither do they deserve new laws or “voluntary” regulations that would blackball them.

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There’s another great line in the Defoe pamphlet that I couldn’t squeeze into this piece. “I know no nation in the world, whose government is not perfectly despotick, that ever makes preventive laws, ’tis enough to make laws to punish crimes when they are committed, and not to put it in the power of any single man, on pretence of preventing offences to commit worse.” Send your favorite Defoe lines to Shafer.Reuters@gmail.com or rescue me from the lonely island of my Twitter feed. (This RSS feed rings every time a new Shafer column goes live. This hand-built one rings every time a correction is filed.)

PHOTO: The last edition of News of the World newspaper goes on sale alongside other British Sunday newspapers in London July 9, 2011. REUTERS/Paul Hackett

By Jack Shafer
The views expressed are his own.

What were the London police thinking when they invoked the Official Secrets Act last week to compel Guardian reporters Amelia Hill and Nick Davies to disclose the confidential source for their July 4 Milly Dowler phone-hacking story? Did they think the Guardian would roll over when they arrived in court on Friday to contest the order? That Hill and Davies would submit? That free-speech advocates, members of Parliament, and journalists around the world would pay no mind to the prosecutorial over-reach?

Whatever the Metropolitan Police thought, they’ve rethought it today, announcing that they’re dropping for the time-being their request for a court order that the Guardian give up its sources.

With the perfect vision that comes with hindsight, it now appears that the court order was a bluff. As the Guardian reported yesterday, the Met did not consult the director of public prosecutions before wielding the Official Secrets Act, as the 1989 law requires. He was only consulted on Monday. In other words, the London police went rogue. If that’s the case, perhaps the goal of the cops was to give the Guardian and its journalists a fright and deter other reporters from investigating the pile-up of journalistic malfeasance, crimes by private detectives, corporate malfeasance at Rupert Murdoch’s News Corps., and, of course, bribe-taking by the Metropolitan Police.

But as all game theory enthusiasts know, a bluff—even an empty bluff such as the Met’s—can disturb the existing equilibrium and leave one’s opponent unsettled. The police may have calculated that the psychological damage done to journalists by requesting a court order would be worth the black eye the police might suffer for making it. But that’s giving the police too much credit for thinking ahead. If they had the skill to think ahead they would have prosecuted the phone-hacking cases back in 2007 when the evidence was fresh.

The Metropolitan police’s targeting of the press—like Rupert Murdoch’s decision to pay out $4.7 million in News Corp. guilt money to Dowler’s family and charity—indicates a frantic turn in the phone-hacking story. The police are now conceding they don’t really understand the law. And Murdoch is conceding that his now-dead newspaper, News of the World, committed the very crimes at the center of the scandal.

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If you’ve got a spare $4.7 million, send it in bitcoins to Shafer.Reuters@gmail.com. For confirmation of delivery, see my Twitter feed. (This RSS feed rings every time a new Shafer column goes live. This hand-built one rings every time a correction is filed.)

By Jack Shafer
The views expressed are his own.

London’s Metropolitan Police, who helped cover up the U.K.’s phone-hacking scandal for the better part of a decade, have finally figured out how to crack the case. Attack the press.

The Guardian, which kept the story alive after Rupert Murdoch’s News of the World minions, top politicians, and the cops throttled it, reports that the Metropolitan Police have requested a court order to force two of its reporters, Amelia Hill and Nick Davies, to surrender their confidential sources from their July 4 Milly Dowler phone-hacking story. Hill has already been questioned by police.

The Met is making its demand under the  Official Secrets Act, which is usually invoked in national security cases. In 1985, Ministry of Defence employee Clive Ponting was prosecuted under the act for divulging information about the sinking of an Argentinean ship during the Falklands War. In 2002, counter-intelligence officer David Shayler was convicted of giving secret documents to a newspaper. In 2003, U.K. government employee Katharine Gun was charged under the act with leaking to a reporter email from the National Security Agency requesting help in bugging the United Nations offices of six countries.

But the act’s fine print also criminalizes leaks of “damaging” information by government officials that could impede the prosecution of criminal suspects. It’s through this window that the police hope to push their court order.

Although I’m appalled by the Met’s assault on the freedom of the press (as we ACLU sympathizers like to say), I’m mollified by the fact that after years of dilly-dallying, the Metropolitan Police are finally taking the phone-hacking case seriously—even if they are punishing a pair of reporters whose only crime is having uncovered long-term wrong-doing that the police previously entombed. The real criminals in the phone-hacking scandal are, of course, the newspaper editors and reporters who hacked phones or ordered them hacked; the private investigators who did the journalists’ illegal bidding; the newspaper executives (Rebekah Brooks? James Murdoch? Les Hinton?) who facilitated the crimes; and the police who, for reasons of self-preservation, pushed the scandal under the carpet.

The circular logic behind the Met’s request for a court order delivers more torque than a spinning Ferris Wheel: The police want the Guardian‘s reporters to surrender the confidential sources who blabbed about the illegal phone-hacking, arguing that the stories are impeding an investigation. But the police had for years deliberately ignored the information that was ultimately leaked to the Guardian! There was no police investigation for the Guardian to “impede” until the Guardian brought the facts to the public’s attention and the public demanded that the police do their job!

Had the Guardian reporters not “impeded” the police investigation, News of the World journalists and their like-minded colleagues in the press would have remained undeterred in their efforts to break the law to break news. Likewise, we probably would have never learned that News of the World hacked a dead girl’s phone, simultaneously interfering with a police investigation and giving the girl’s parents false hope that she was alive.

That the police have a grudge to settle with the Guardian and the press goes without saying. The press has been making life miserable for the cops. Earlier this summer, the Guardian‘s Davies reported that police have collected thousands of pounds of bribes from a detective employed by journalists. Reuters’ Mark Hosenball also reported the existence of e-mail traffic okaying the payment of a “four figure sum” by News of the World to a police contact. (Cops hate it when you reveal the source of their donut money.) In 2007, Andy Hayman, the lead police investigator in the phone-hacking case, left the force in the wake of questions about his professional conduct. His destination: a post as columnist for Murdoch’s Times of London. Over the summer, Police Commissioner Sir Paul Stephenson was forced to resign when his personal links to a News of the World editor arrested in the hacking investigation were revealed. Assistant Commissioner John Yates, who neglected to reopen the phone-hacking investigation after he reviewed it in 2009, also resigned this summer following assertions that he had mucked up the probe.

How badly did Yates neglect the investigation? Between 2006 and autumn 2010, nobody in Scotland Yard “bothered to sort through” the “11,000 pages of handwritten notes listing nearly 4,000 celebrities, politicians, sports stars, police officials and crime victims whose phones may have been hacked by the News of the World,” as the New York Times‘ Don Van Natta Jr. reported in July. Said Yates in defense of his investigative priorities, “I’m not going to go down and look at bin bags.”

Stephenson, Yates, and Hayman have recently been cleared of misconduct in the case, but it’s a rare police force that doesn’t hassle the press for exposing its transgressions and embarrassments. The best way to grade a news organization is to ask when the government last subpoenaed its reporters. If it’s been longer than two years, the news organization hasn’t been doing its job.

The Guardian provides a perfect example of no good deed going unpunished. The explicit target of the court order is the Guardian journalists, but the unsubtle message to leakers of police misbehavior everywhere is this: Do the right thing and we will smoke you out and send you—and your sources—to jail.

The Guardian‘s Dan Sabbagh asked an excellent question on Twitter this afternoon: Why didn’t the Met police go after the Telegraph with the Official Secrets Act after it published—in defiance of Parliament—its 2009 investigation of the misuse of expense budgets by members of Parliament? Sabbagh’s analysis is dead-on: If airing evidence of Parliament’s wrong-doing before the authorities have sanitized it isn’t “impeding” an investigation, nothing is.

This isn’t the first time the police have tried to shut down the Guardian‘s phone-hacking investigation, as it reports today. In December 2009, Commissioner Stephenson tried—unsuccessfully—to convince the paper that its coverage of the affair was overblown. But last summer in testimony to the select committee investigating the scandal, he reversed himself and conceded the Guardian had been right to pursue the story.

When police botch a case, as the Metropolitan Police have, usually nobody but the press will investigate. When the police go crooked, as bribe-taking members of the Metropolitan Police are believed to have, you can’t always depend on the internal affairs department to set them straight. Your better bet is an unfettered press. Instead of harassing the Guardian with court orders, the cops should be buying Davies and Hill drinks.

That’s something even former Police Commissioner Stephenson might salute now.

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By my own yardstick, I am a failed journalist. Never has any police force subpoenaed me. If the Met has any spare court orders, won’t someone please e-mail one of them to Shafer.Reuters@gmail.com. For faster delivery, send them to my Twitter feed. (This RSS feed rings every time a new Shafer column goes live. This hand-built one rings every time a correction is filed.)

PHOTO: A traditional lamp stands outside a Metropolitan Police station in central London February 1, 2011. REUTERS/Luke MacGregor