Suchergebnisse

The essay concerns the manner private power threatens the proper democratic role of the press or mass media. But first, Part I examines two preliminary conceptual matters involved in locating this discussion in the context of a conference on private power as a threat to human rights: 1) the relation of human rights to private power in general. This relation is complicated due to fact that human rights can themselves be seen as the assertion of private power against government or against collective power while, depending on how conceptualized, human rights can be improperly threatened by private power even while private power operates in a generally lawful manner; 2) involves the relation of press freedom and human rights. Here I argue that human rights are ill-conceived if offered as embodying any particular right in respect to the press—more specifically, I argue that a free press is not a human right—but argue instead that an ideal media order that is embodied in a broad conception of free press provides the soil in which human rights can flourish and the armor that offers them protection. Both government power and private power are necessary for and constitute threats to these supportive roles of a free press.Political-legal theory—or in constitutional democracies, possibly constitutional theory—should offer some guide to how the tightrope between government as threat and government as source of protection against private threats ought to be walked. That is, the goal is to find both proper limits on government power and proper empowerment of government to respond to private threats. Part II examines the variety of private threats to the proper role of the press. It focuses on two forms of threats: first, market failures that can be expected in relatively normal functioning of the market; second, problems related to the purposeful use of concentrated economic power. Responsive policies are multiple—no magic bullet but varying different governmental (as well as private) responses are appropriate. However, Part III illustrates this point by considering only two types of governmental policies, both of which I have recently been involved in advocating: first, government promotion of dispersal of concentrated power by means of ownership rules and policies; second, tax subsidies in the form of tax credits for a significant portion of journalists salaries as a means to correct for underproduction of journalism on theory that this journalism generally produces significant positive externalities.

My thesis is simple. The right of informational privacy, the great
modern achievement often attributed to the classic Samuel Warren and
Louis Brandeis article, "The Right to Privacy" (1890),
asserts an individual's right not to have private personal
information circulated. Warren and Brandeis claimed that individual
dignity in a modern society requires that people be able to keep their
private lives to themselves and proposed that the common law should be
understood to protect this dignity by making dissemination of private
information a tort. As broadly stated, this right not to have private
information distributed directly conflicts with a broadly conceived
freedom of speech and of the press. My claim is that, in cases of
conflict, the law should reject the Warren and Brandeis innovation.
Speech and press freedom should prevail; the privacy tort should be
ignored. This conclusion requires a normative argument concerning the
appropriate basis and status of speech freedom that this essay will not
really provide but for which I have argued elsewhere. Here, instead, I
will describe that theory of speech freedom, explore its implications
for informational privacy, and finally suggest some reasons to think
that rejection of the privacy tort should not be so troubling and is,
in fact, pragmatically desirable.

First, Professor Baker explores an instrumentalist argument for special press rights going beyond those protected by a liberty theory of freedom of speech. Then, in Part II, he examines the threats of -government power and private economic power to freedom of the "press" and considers the permissible extent of government intervention to structure the press or to protect it from private threats.

RELIANCE ON COMMON SENSE IS RECOGNIZED AS A RELIABLE PREDICTOR OF LEGAL DECISIONS; R. POSNER'S WORK (THE ECONOMIC ANALYSIS OF LAW, BOSTON, MASS: 1972) SHOWS THAT THIS COMMON SENSE MATCHES THE RESULTS OF ECONOMIC REASONING. POSNER'S ANALYSIS DEPENDS ON THE MEASUREMENT OF VALUE IN TERMS OF MARKET PRICES DETERMINED BY WEALTH DISTRIBUTION EXISTING IN A SOCIETY. LAWS SERVE TO ASSIGN RIGHTS TO THOSE FOR WHOM THEY ARE MOST VALUABLE. POSNER'S ANALYSIS FAVORS ASSIGNING RIGHTS TO PRODUCERS RATHER THAN CONSUMERS, SINCE A PRODUCER'S VALUE FOR A RIGHT NEED NOT DEPEND ON HIS PERSONAL WEALTH AS A CONSUMER'S DOES. THE ANALYSIS FAVORS WEALTHY CONSUMERS, SINCE THEY CAN AFFORD TO SPEND MORE ON CONSUMPTION & VALUE IT MORE IN PRICE TERMS. EFFICIENCY IS USUALLY VALUED AS A CONTRIBUTION TO ECONOMIC WELFARE; A 2ND CRITERION OF WELFARE--EQUALITY--IS REJECTED BY POSNER ON GROUNDS OF THE IMPOSSIBILITY OF INTERPERSONAL UTILITY COMPARISONS, WHICH IS NOT NECESSARILY A VALID BASIS FOR THIS REJECTION. DEFENSES OF THE MARKET IN GENERAL MAY BE EITHER UTILITARIAN, & GENERALLY QUESTIONABLE AS IN POSNER'S MODEL, OR ETHICAL, IMPLICITLY RESTING ON THE ASSUMPTION THAT THE MARKET IS NEUTRAL BETWEEN INDIVIDUAL PREFERENCES. SINCE PEOPLE MAY DISVALUE THE MARKET AS SUCH, THIS NEED NOT BE TRUE. POSNER'S THEORY OF PUNISHMENT FOR CRIME FURNISHES A SPECIFIC EXAMPLE OF THE FLAWS OF THIS APPROACH. 'COMMON SENSE' MAY BE NOTHING MORE COMPLEX THAN FAMILIARITY WITH THE MARKET AS A SOCIAL PATTERN AMONG MANY POSSIBLE PATTERNS, SOME PERHAPS PREFERABLE. W. H. STODDARD.