Montreal, March 15, 2011 • No 287


Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B.A. and an M.A. in political science from McGill.



The Separation of Press and State


by Adam Allouba


          In November 2009, convinced that the profession of journalism was in peril, Quebec’s Minister of Culture Christine St-Pierre did what worried governments do best: she commissioned an official study.

          In December 2010, the working group released its final report with 51 recommendations, the two main ones being legislation to recognize “professional journalists” and a regime of public subsidies for them. Unfortunately, most of its proposals would likely undermine freedom of the press and decrease the quality of journalism in Quebec.


We’re Special People

          The title of “professional journalist” would be reserved to a select few, although the report does not propose specific eligibility criteria. It explains that this status is important in two ways. First, it would grant its holders special legal and financial privileges that would assist them in their work. Second, it would help the public to distinguish professional journalists from “professional or amateur communicators.” The idea that we need the state to identify “real” journalists for us is insulting, but the notion of giving them special status is downright dangerous in a number of ways.

Equal under the law. Sort of.

          The report suggests that the province authorize the creation of municipal press galleries―with membership limited to professional journalists. Galleries normally control access to press conferences and pooled services like communication facilities. This gatekeeping function empowers them to impair a citizen’s ability to report on our elected officials by denying her accreditation. Sometimes those denials happen for ideological reasons, but if the press gallery is a private entity then it is entitled to admit whomever it pleases. Legally restricting access to municipal press galleries, however, would be a serious and possibly unconstitutional blow to citizen journalism. Incidentally, the report never explains why journalists need state permission to create press galleries and cannot simply do so on their own.

          Another perk would prevent professional journalists from being compelled to reveal a source’s name. Given such a rule, if you were a whistleblower with information of public interest, would you pass it on to a local blogger or call up a major newspaper? Remember that only one of them can guarantee your anonymity. By encouraging people to talk only to professional journalists, this rule could only reduce competition and further entrench the established media.

          The report notes that similar laws exist in Belgium and Italy, which is interesting, but provides absolutely no evidence that they have had any beneficial effect! Indeed, the document often notes that its recommendations are in effect elsewhere without seeking to show that the experience has been a good one.

          Professional journalists would have other advantages. A newspaper sued for defamation would be exempt from posting a bond for the cost of the trial―if the work of a professional journalist were at issue. Professional journalists could represent their employers before the Access to Information Commission. (Currently, legal persons must be represented by a lawyer.) Their access to information requests would go to the top of the pile, on the grounds that their work is in “the public interest, not their private interest.” And so on.

          Now, unless a journalist is working anonymously for free, it’s hard to agree that he is only working for the public interest. In any case, the underlying thinking is clear: only “real” journalists practice journalism. Bloggers, volunteer contributors (such as your humble author) and other citizen-journalists are just a motley crew of laypeople. At best, their work is endearingly amateurish; at worst, its sloppiness threatens the public discourse. This attitude smacks more of elitism and condescension than of concern for a free and vibrant press.

          While some of the suggestions, like protecting sources, are not bad, they should apply to journalism―not journalists. For example, anyone who gets a tip that a call for tenders was rigged should be able to tell the world without risking imprisonment for refusing to disclose her source. Protect the activity and you protect journalism. Protect a class of persons and you protect journalists from competition.

"Journalism, perhaps more than any other profession, requires absolute independence from the state and the lowest possible barriers to entry."

Show me the money!

          The legal privileges of a professional journalist pale, however, in comparison to the financial benefits. The report calls for significant public subsidies for journalism―or rather, for professional journalists and their employers. This would give professional journalists yet another undue advantage over their competitors. But the real danger is the obvious one, which even the report itself acknowledges: state funding for the media implies state control of the media.

          To pre-empt this critique, the authors propose channelling the funds through arm’s length bodies such as the Quebec Press Council or boards made up of professional journalists. This is a poor solution. For one, the state can still manipulate the amount of the subsidies to influence reporting. Even the mere threat of cuts can be enough to “whip [journalists] into shape.” Moreover, the members of such a body have to be selected somehow and will be accountable to whoever picks them. Friends of public broadcasting know that direct government involvement is a bad idea. Conversely, though, if they are chosen by another group―say, their journalistic peers―then they will answer to those voters alone and be unaccountable to the people footing the bill. If the subsidies fail to produce the desired result, there will be no corrective mechanism. The first scenario is an affront to liberty, the second an affront to taxpayers―and to journalism, given the lack of any incentive to ensure that the money is spent wisely.

          While the report discusses state supports for journalism in France, Sweden, Belgium and the US―and existing programs in Canada and Quebec―it does not try to demonstrate that those policies improved the quality of journalism. Perhaps the authors feel that public subsidies are guaranteed to work well. Unfortunately, experience suggests otherwise.

          The report also suggests a variety of indirect subsidies for professional journalism: emulating a French program that provides anyone aged 18 to 25 with one newspaper a week; arranging for schools to receive newspaper subscriptions at no cost; public bursaries for journalism internships in rural areas; no-charge access to court dockets for professional journalists; tax credits for independent media that hire professional journalists; and the right for a professional journalist whose employer changes its editorial stance to quit and receive up to 52 weeks of salary if that change could harm her “honour, reputation or moral interests.”

          The list is extensive and ranges from the transparent (guess who pays for the free newspapers?) to the obnoxious (why do journalists alone deserve free access to court files?). Buying newspapers for all those eager students and young adults is just as problematic as a direct subsidy. After all, who decides which newspapers get the free ride? While a tax credit may improve corporate balance sheets, it may not encourage new hiring as tax credits often seem to reward people for what they were already going to do. And as for the right to get paid after quitting over an editorial dispute, French law recognized it in 1936. Has it strengthened the profession? The authors felt no need to tell us.

And There’s More…

          The questionable recommendations go beyond matters of status and money. Lamenting the quality of French in the media, the report suggests mandatory linguistic training in journalism schools and annual language courses to maintain professional journalist status. Having just insulted every francophone journalist in the province―and their employers, who are apparently unqualified to assess their employees’ language skills―the authors veer into the surreal, asserting that “mastery of the French language is an indissociable quality from the journalistic profession.” That would be news to the Montreal Gazette, the Montreal Mirror, the Sherbrooke Record, the CBC, CTV, Global, CHOM, CJAD, and every other English-language media outlet in Quebec.

          Another requirement for professional journalist status would be to obtain annual continuing education credits. Many professions have similar requirements, but whether in law, accounting, medicine or generally, the objections are usually the same: you can mandate attendance but not learning, and the costs create yet another entry barrier to the profession. Individuals who want to stay current will do so anyway, while those who don’t can be dragged into a classroom in body, but not in spirit. And given the paramount need to accumulate a certain number of hours to maintain accreditation, courses are likely to attract practitioners based on cost per credit rather than actual utility. Online or self-study courses can ease the financial burden, especially for those in rural areas, but short of administering pop quizzes, it is impossible to know whether or not the person actually sat in front of his computer or read the textbook.

          Incidentally, the report’s lead author, Dominique Payette, directs the graduate journalism program at Laval University. Dr. Payette is doubtless sincere in believing that every journalist in Quebec would benefit from her tutelage (and that of her colleagues), but it’s a happy coincidence that strengthening journalism also means strengthening her institution’s balance sheet, as it offers a range of continuing education options.

It’s Not All Bad…

          In fairness, the report includes a few excellent suggestions, such as mandating online publication of as many government documents as possible, requiring municipalities to release the agenda of each council meeting 48 hours in advance and forcing municipal councils to allow the recording and publication of their meetings. Unfortunately, these are exceptions to the rule―the general thrust of the report is: “Give us money and privileges.”

          Journalism, perhaps more than any other profession, requires absolute independence from the state and the lowest possible barriers to entry. In fact, if the concentration of media ownership is truly as worrisome as Dr. Payette says it is, the worst possible thing we could do is make it harder for aspiring journalists to join the trade. For the government to co-opt the profession and create a protected caste of journalists is abhorrent in a free society. The report’s authors are not blind to the risks that their proposals entail, but they dismiss them far too easily. Even more depressing is their eagerness to imitate policies adopted elsewhere, contrasted with their total lack of curiosity as to the empirical data that those experiments have produced. Before we ape aspects of the French, Belgian, Swedish or other models, should we not consider how successful they have been?

          Their rush to regulate and subsidize suggests that the authors genuinely believe that intent is reality. If the law promises some benefit or prohibits some danger, that is all the reassurance we need that the risks are few and the rewards many. In reality, there is little evidence that this is so. Even if the report’s authors mean well, the road to hell may truly be paved with their good intentions. The fourth estate―the public’s watchdog―must be kept as separate from the halls of power as possible.