Sir William Blackstone was an 18th century English jurist and politician who wrote down and commented on the Common Laws of England. The courts in England, Canada and the U.S.A. have operated under his principles ever since. He is perhaps best known for stating that it is “better that ten guilty persons escape than that one innocent suffer.”
His second most important contribution was his impact on our constitutional freedoms of speech, particularly as it applies to the press.
He wrote that “the liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restrictions on publications, and not in freedom from censure for criminal matters when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”
This principle of freedom of the press to speak was codified in the first amendment of the United States Constitution; Section 2 (b) of the Canadian Charter of Rights and Freedoms; and the United Nations 1948 Universal Declaration of Human Rights.
Unhappily in the U.S.A. today, the Washington-based press corps, the New York Times and CNN – to name the most notable players – have been acting in a most “improper and mischievous” manner toward the President of the United States of America starting well before he was elected. The legal question, of course, is whether they have defamed him (that action is called libel when done by the press). Interestingly, in the U.S., when dealing with public figures, the press is not guilty if they act with recklessness in reporting, it must be done with “actual malice.” Let’s leave the silly reactiveness of Fox News and Twittering by the President alone for the moment.
What about Canada? In public consultations concerning Bill-C51, the Anti-Terrorism Act of 2015, Canadians were clear that we expect our rights and freedoms to be protected at the same time as our security. The same issue has come up with Bill C-51 of 2017 dealing with amendments to the Criminal Code where publishing court proceedings could damage a person’s reputation before a judgment of the case is registered. Our Canadian press has complained continually about restrictions on court proceedings, governmental restrictions on release of materials through Freedom of Information applications, and cabinet ministers answering press questions in the same manner that they treat fellow parliamentarians in Question Periods. There should be no doubt in any Canadian’s mind that freedom of expression, both by the individual as well as the press is an essential component of our constitutional freedoms. But we need to also be mindful that along with that freedom comes a basic responsibility to do no harm.
We are seeing what happens south of the border, where the political press corps have become entertainers, make themselves the news, and forget that they are journalists.
We are watching the 1976 film Network in reality. When will the American public stick their heads out of their windows and yell: I’m as mad as hell and I’m not gonna take this any more!?
Alan Murdock is a local pediatrician.
