Chapter 1: Law, Media, and Democratic Institutions

Because there are democratic societies with different profiles of the media, no specific matrix of press development can be considered “essential” as part of the project of democratization. Development of “free and independent” media can, itself take many forms, and freedom and independence can have many gradations. It is important to know what kind of press in what kind of society will perform the functions necessary for the process of building democratic institutions to proceed healthily.

Given modern telecommunications, especially the Internet, and greater and greater cross-border data flow, the functions of traditional media may be complemented but hardly superseded. Only with an understanding of basic elements of structure and function can policies to further a particular right to receive and impart information be evaluated.

The Study of the late 1940s Hutchins Commission, “A Free and Responsible Press,” identified five possible functions as criteria for the assessment of press performance. The press could do one or more of the following: 1) provide “a truthful, comprehensive, and intelligent account of the day’s events in a context which gives them meaning,” a commitment evidenced in part by objective reporting; 2) be “a forum for the exchange of comment and criticism,” meaning in part that papers should be “common carriers” of public discussion, at least in the limited sense of carrying views contrary to their own; 3) project “a representative picture of the constituent groups in the society”; 4) “present and clarify the goals and values of the society”; and 5) provide “full access to the day’s intelligence,” thereby serving the public’s right to be informed. The Commission also identified three summary tasks that are central to the press’s political role: to provide information, to enlighten the public so that it is capable of self-government, and to serve as a watchdog on government. It might be said that there is often an additional function of the press, namely to provide to various segments of the society a sense that they are represented in the public sphere.

As Professor Baker has written, different conceptions of democracy demand somewhat different functions of a press. Visions of a democratic society that emphasize citizen participation, for example, would underscore the need for media that, as Baker puts it, “aid groups in pursuing their agendas and mobilizing for struggle and bargaining.” On the other hand, a more elitist version of democracy requires principally that the media provide sufficient information for those who participate in the public sphere to function rationally, and, of course, perform a watchdog function. In some models, the media has a responsibility to assist in inculcating and transmitting “proper values.”

Frequently, the essence of transitions to greater democracy is the fragmentation or destruction of a previous monopoly or oligopoly of power, including the monopoly over information as a critical element of the monopoly over power. In many societies, reform means ensuring that there is access for a group of voices not previously included in the public marketplace of ideas. The question then is how the market is opened and to whom. Put differently, what new or additional suppliers in the market for loyalties are supported by what sources of power or money and with what objectives. Russia in the late 1990’s provides an example of a transition in which media companies were, in large part, proxies for major formations of capital and political influence as each formation sought its own group of media entities.

Assuring the existence of free and independent media may require providing, in the marketplace of ideas, instruments for articulating values and summoning public support that are not wholly dependent on the state. Moving towards free and independent media early in the process of transition may also provide a building block for the future stable set of democratic institutions. Even if the media do not perform the function of effective watchdog, of engaging in information-providing and value-transmitting functions in the early days, that may be because of lack of experience. Starting the media early on the right road means that when the watchdog and other functions are necessary, the media will be more prepared. Free and independent media may organically arise in a mature democracy, but artificial steps are necessary in many transition contexts.

Finally, one might argue that the emergence of democratic institutions in transition societies will come faster and with greater public support and involvement if there are free and independent media to develop and inspire public opinion.

A second caution involves the functioning of law, itself. Laws that create the structural underpinnings for independent media are necessary for the development of civil society, but they alone do not guarantee how media will function. For free and independent media to “work,” the community in question must value the role that the media play. Rob Atkinson underscores this problem by stating that, “creating a civil society by legal fiat is an impossible bootstrap operation, both practically and conceptually. In both liberal political theory and the history of liberal politics, the rule of law is the product of a prior, pre-legal commitment to civil society.”1  Julie Mertus has written,

It is one thing to identify a need to alter the old cartel of voices in a society in a direction away from a monopoly or oligopoly. It is another to try to understand what steps or processes allow that to occur and which voices, in the process of change, will be favored as new entrants. In Rwanda, in the early 1990s, international organizations helped demonopolize the media and train voices different from those of the state. But a newly professional, newly skilled independent radio station became the instrument of extremists who favored, and indeed induced, genocide. Too often, the term “independent media” is used indiscriminately to describe media that contribute to democratic life as well as media that do not fall under a monopoly or oligopoly that restricts a society’s set of available voices. These two attributes, contributing to democracy and contributing to voice pluralism, should not be confused.

Law alone, efforts of aid-givers alone, or efforts by the host government alone (by subsidy, delivery of newsprint, or control over the means of distribution) rarely ever determine how free, pluralistic, and independent the media can be (though all of these structural aspects are important). What is true across the board is that there is a close interaction between what might be called the legal-institutional and the socio-cultural, the interaction between law and how it is interpreted and implemented, how it is respected and received. In this sense, another important factor to the enabling environment is the response of the citizenry. For example, readership of the serious press declined precipitously in post-Soviet Russia, even though newspapers enjoyed greater freedoms. Though this happened in large part because of price increases at the newsstand, a socio-cultural factor of note is that after a period of euphoria, in some societies, the zest for news about public events, at least in the print media, had declined.

Similarly, it is important to compare behaviors of television audiences across transitions. Directors of broadcasting stations soon realized that replays of American films, whether or not they had been properly obtained, were far more successful at obtaining audiences – especially in a competitive environment – than the production of documentaries or serious drama. A larger audience or more reliance on the market, did not, in this sense, magnify contributions to public discourse. On the other hand, to build an independent medium, attention to audience, and the construction of a comprehensive program schedule, is vital. In all these ways, it is important to acknowledge the relationship between law and the other elements of building free and independent media. Media law reform is most effective or, perhaps, only effective, when it includes efforts to build a reliable tradition of professional journalism, train publishers in marketing and distribution, and develop a public culture that is supportive of the media sector.

In this study, we discuss specific laws that are important building blocks. Still, we emphasize the surroundings of law and the creation of a culture of effective independent and pluralistic media. After all, what is it that makes one society open and tolerant and one not? What is it that produces a citizenry that not only has the sources to be informed but also, in fact, avails itself of them? It is easier and clearer to see what negative steps preclude society from allowing such a culture to develop. The tools of speech repression are easier to identify than are those that encourage the productivity and use of information. Good media laws alone do not make a civil society happen, though a legal framework may be helpful. Many are the authoritarian regimes that mastered the language of openness. It may never be known what elements exactly contribute most – or even essentially – to the creation of a culture of democratic values. Perhaps it is the existence of a vibrant non-governmental sector that is vital: organizations that are sensitive, at any moment, to infringements of journalistic rights. Institutions like the Glasnost Defense Foundation, the Committee to Protect Journalists, and Reporters Sans Frontieres were, at critical times in transition societies vigilant in identifying possible backsliding and bringing it to the attention of the international community. For these entities, the existence of a specific media-friendly law, with grounds for defense resting in its violation, might make the analytic task easier. But even the existence or nonexistence of a law did not determine the nature and scope of scrutiny of these organizations.

Media law reform and other steps that are taken must be evaluated in a specific way. They should be viewed substantially as helping to constitute a media-sensitive society and evaluated in the way they contribute to this process. Taking laws off the shelf of another society and plugging them into the processes of transition will certainly, alone, be insufficient. The public acts of drafting and debating media laws must be enacted as a drama, a teaching drama that educates the citizenry in the role that the media can play. The process must encourage a rise in consciousness about the value and functioning of free speech and its operation in the society.

The very idea of an enabling environment for media reform assumes the importance of particular forms of law for free and independent media. It also presumes the necessity of a certain kind of media structure, sometimes including a prerequisite that the media be indigenous, for the development of democratic institutions. Some may argue, however, that in a media environment that is increasingly global, the development of indigenous media is not an essential prerequisite for the emergence of stable democratic institutions. Take, for example, the view that what is important is that the government does not have a monopoly on information (as it often does with respect to the legitimate use of force). The very opportunity of civil society to have access, at critical times, to Internet, fax, and phone might sufficiently allow the performance of the media checking function. At the least, this may mean that such a society where there is an imperfectly developed private media sector but a porous capacity for citizens to gain Internet access is less in need of intervention or reform than a society that is bereft of both. This might be called the “new technology” critique of the need for intervention to strengthen free and independent media.

On the other hand, important policy decisions are often made locally, by political figures subject to local elections. Plural media that may only discuss global events do not provide a sufficient public sphere for those events that are indigenous, and otherwise central to the needs of citizens.

It is the essence of an enabling environment analysis that it is difficult, if not impossible, to measure the effectiveness of a specific intervention designed to render the media more vibrant contributors to a transition toward democratic institutions. It is easier to suggest what range of efforts is more appropriate than another in particular circumstances and at a specific moment in time. For example, the existence of the Internet played a crucial role in allowing certain opposition groups in the former Yugoslavia to maintain contact with the outside world at the moment in 1999 when the Serbian government closed down or seized most opposition forms of media and communication. But it was a combination of factors, including assistance over the years and early identification of individuals to be part of an anticipated civil society, that allowed the critical mass with sophisticated media and a world-wide network of relations to develop. Only with all of that could the deus ex machina of the Internet occur.

 1 Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 Texas Law Review 259, 297 (1995).

 2 Julie Mertus, From Legal Transplants to Transformative Justice:Human Rights and the Promise of Transnational Civil Society, 14 American University International Law Review 1335, 1384 (1999).