Press Freedom in the U.S.: Lessons for Zimbabwe

Guest Lecture Presentation

Karen Kelley, Counselor for Public Affairs at the United States Embassy

Journalism and Media Studies Department, Midlands State University, Gweru

Thank you very much for this opportunity to address you all in the beautiful City of Progress. We are still commemorating World Press Freedom Day, which is May 3. I am especially pleased to be addressing the Journalism and Media Studies School today, given that so much of our world’s future rests on the shoulders of an ever more influential media.

World Press Freedom Day is a time we reflect and thank journalists in Zimbabwe and around the world without whom democracy could not flourish and whose courageous work helps hold authorities to account.  We pay tribute to journalists, who defend democratic ideals because of their commitment to discovering and sharing the truth, despite the enormous dangers they face.

As President Obama said, World Press Freedom Day is ‘a time for us to reflect and honor all those journalists who are languishing in jail as we speak right now, are being harassed, are in danger, and, of course, journalists whose lives were lost.’

Advancing Media Freedom is a Regular Part of U.S. Diplomatic Work

We advocate for freedom of expression and raise media freedom issues, including specific cases, in bilateral discussions with other governments and in multilateral bodies, including but not limited to the UN Human Rights Council, the Organization for Security and Cooperation in Europe (OSCE), and the Organization of American States.

Each year, the U.S. Department of State runs a “Free the Press” campaign which started five years back as part of its efforts to mark the importance of a free and independent media in the days leading up to World Press Freedom Day. Through this campaign, we  highlight journalists and media outlets that we have identified in previous years that were censored, attacked, threatened, imprisoned, or otherwise oppressed because of their reporting whose situations have not yet improved.

We also highlight troubling trends in the persecution of journalists worldwide. The Department Spokesperson highlights emblematic cases of journalists or press outlets under threat around the world at the Daily Press Briefing attended by local and foreign journalists so that we may honor their courage and service; call on governments to protect the right to freedom of expression; and emphasize our own commitment to promoting freedom of expression in the United States and around the world. The cases are profiled on www.HumanRights.gov and those students and faculty members who are on Twitter can follow the hashtag #FreethePress.

In addition, each year, we work with the Department of State’s Bureau of Educational and Cultural Affairs Edward R. Murrow Program for Journalists to invite journalists to the United States. According to a recent report evaluating media exchanges, the over 1,600 journalists and media professionals who participated in various Department of State exchange programs engage in activities that promote greater press freedom once they return home, such as advocating for freedom of information; protecting journalists’ rights, and adopting new professional and ethical standards. Through his work with the Voluntary Media Council of Zimbabwe, Mr. Loughty Dube is a good example of such individuals.

It is in this context that I would like to thank VMCZ Staff, Mr. Dube and Faith Ndlovu for facilitating this discussion today. The work of the VMCZ is one we see as very important in Zimbabwe’s rapidly developing media landscape. Voluntary media regulation works to promote public understanding of how the media works whilst at the same time enhancing professional and ethical conduct among media workers. The outcome is one that benefits both the public and the media profession as it creates an environment where journalists can report without fear or self-censorship whilst members of the public and other sectors can receive prompt redress in cases where media excesses are noted.

Let me also thank the staff at Dr. Zvenyika Mugari and his fellow faculty members at Midlands State University’s Journalism and Media Studies Department for their dedication and hard work in providing tutelage to Zimbabwe’s future and current scribes. You are playing a critical role in ensuring that the future of independent and objective journalism remains bright.

Journalism and media training in Zimbabwe has evolved and on a daily basis, my job entails ensuring that they have accurate information about United States programs and issues in Zimbabwe. It has been a pleasure to interact with some of your graduates working to tell the story of Zimbabwe as well as the story of our people to people relations.

Press Freedom in the United States- Lessons for Zimbabwe

I am so pleased to be here to talk about a subject that is so close to my heart and an integral part of my work since I joined United States Foreign Service some 17 years back. The topic is “Press Freedom in the United States- Lessons for Zimbabwe.”

Before I attempt to share the experience of the United States, let me state at the outset that the U.S. does not seek to impose its values on any one country. We seek to find ways to promote international cooperation to support and promote universally accepted values, including media freedom. It was heartwarming to see media unite in celebration when on February 3 this year, Zimbabwe’s Constitutional Court confirmed that Zimbabwe’s criminal defamation law is unconstitutional.  The decision removed lingering doubts that were caused by the government’s decision to ignore an earlier ruling that outlawed criminal defamation based on the previous constitution.  This is a clear demonstration that when it comes to universal human rights principles Zimbabwe and the United States are united. And we certainly applaud this important ruling and hope that it will enable the press to continue its work unfettered without fear of criminal litigation.

Overview of U.S. Media

Media in the United States are overwhelmingly under private ownership. We also have National Public Radio (NPR) and television’s Public Broadcasting Service (PBS)—editorially independent networks that are funded by a combination of government allocations and private contributions.

Like in Zimbabwe, U.S. traditional media, including print and broadcast outlets, have suffered financially from the increasing popularity of the internet as a news source. This is a challenge that has become common across the globe. In particular though, the newspaper industry is undergoing a period of decline and readjustment. There were an estimated 1,300 daily newspapers, geared primarily toward local readerships, in circulation in 2014—a record low. The Newspaper Association of America reported in 2014 that overall newspaper revenue had declined by 2.6 percent in 2013 compared with the previous year, and an October 2014 analysis from the Brookings Institution found that total advertising revenue for newspapers had fallen by nearly two-thirds since 2000.

Even the largest and most prestigious papers have faced falling print circulations and advertising revenues and been forced to cut staff. The New York Times announced in September 2014 that it was cutting 100 newsroom jobs and several more administrative positions, representing a 7.5 percent decline in its newsroom staff. The Wall Street Journal and USA Today also eliminated dozens of newsroom positions each in 2014. To compensate for reduced staff, many outlets are increasingly turning to freelance journalists. Some newspapers have dropped print editions entirely to concentrate on their online editions, some have folded completely.

Social-media platforms such as Twitter and Facebook have gained prominence as a means of breaking news and mobilizing public opinion on political and policy issues. Sites like BuzzFeed and Mashable have taken steps to improve their journalistic credentials, while Vice News, a relatively new online venture, has quickly established itself as a source for international news.

Press Freedom: An Evolving Concept

Now to the topic: In my country the definition of what “press freedom” is actually an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause of our Constitution in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and now Web sites and Internet postings.

To a great extent, what we mean by “press freedom” today was shaped in an extraordinary era of Supreme Court decision-making that began with New York Times Co. vs Sullivan and concluded in 1991 with Cohen v. Cowles Media Co. During that remarkable period, the Court ruled in at least 40 cases involving the press and fleshed out the skeleton of freedoms addressed only rarely in prior cases.

The famous Supreme Court ruling in the case between the New York Times Co. vs United States in 1971. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. For those who don’t know what these are, Pentagon Papers is a term used to refer to an internal Defense Department report that detailed government information with regard to the Vietnam War. The New York Times fought for the right to publish the papers under the umbrella of the First Amendment.

The landmark decision reinforced the Court’s stance against prior restraint and has often been noted in subsequent prior restraint cases. In 2000, a Texas district court judge ordered the Associated Press (AP) not to publish a story about a state-guaranteed loan to a Texas shrimp farm. Lawyers for the AP cited the New York Times case in their argument. The judge lifted the order after two days of hearings.

And, although the subject remains a lively topic of academic debate, the Supreme Court itself reviewed the historical record in 1964 in New York Times Co. vs Sullivan and concluded that the “central meaning of the First Amendment” embraces as well a rejection of the law of seditious libel — i.e., the power of the sovereign to impose subsequent punishments, from imprisonment to criminal fines to civil damages, on those who criticize the state and its officials.

Legal Protections for Press Freedom

The United States has one of the world’s strongest systems of legal protection for press freedom. The 1791 First Amendment of the U.S. Constitution provides the core guarantee of press freedom and freedom of speech.

It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This powerful declaration enshrines one of the most basic beliefs of our nation: the importance of the press in nurturing democratic government.

History is our teacher.  Without freedom of the press, average hard-working people would never know about the true horrors of war, of people yearning to be free and about government, business and civil society leaders who abuse their positions of trust. For Americans, our free and independent media opened our eyes to civil rights abuses, the Vietnam war, apartheid in South Africa, and Watergate. Some people may not want to know about the sometimes unpleasant realities of the world we live in.  But without a a free press and access to information, people are doomed to repeat their mistakes.

Significantly though, as Secretary of State John Kerry amply summed it up for us when he said journalists are “defenders of liberty” working at “a very precious endeavor … under constant pressure.” In his address on January 28th this year at the official opening of the new Washington Post building, Secretary Kerry said journalists had proven that “not even the President of the United States is above the law” when it exposed details of the Watergate scandal during the administration of President Richard Nixon.

Freedom of the press is protected by the United Nations Universal Declaration of Human Rights and is a hallmark of every free society. Wherever media freedom is in jeopardy, all other human rights are also under threat. Some 235 years ago, when American founding fathers were deliberating the role of a free press in our nascent democracy, President Thomas Jefferson, our third president who was a strong proponent of freedom of the press, wrote,

“Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Yet, he had issues with the media and often, is also credited for demanding a high-quality press. He wrote, “As for what is not true, you will always find abundance in the newspapers.”

The U.S. system is built on the idea that the free and open exchange of ideas, among other things, encourages understanding, advances truth-seeking, and allows for the ability to rebut falsehoods, in contrast to systems that rely on governments to judge, direct, and control speech.

An independent press can provide citizens with a variety of information and opinions on matters of public importance. However, freedom of press sometimes collides with other rights, such as a defendant’s right to a fair trial or a citizen’s right to privacy. In recent years, there has been increasing concern about extremely aggressive journalism, including stories about people’s sexual lives and photographs of people when they were in a private setting.

In the United States, the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger our national security. By the same token, the government cannot:

  • Pass a law that requires newspapers to publish information against their will.
  • Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even on the dissemination of false and damaging information about a public person except in rare instances.
  • Impose taxes on the press that it does not levy on other businesses.
  • Compel journalists to reveal, in most circumstances, the identities of their sources.
  • Prohibit the press from attending judicial proceedings and thereafter informing the public about them.
  • Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment.

In that regard, however, it must be noted that not all media are “created equal” when it comes to entitlement to the full protections of the First Amendment’s press clause. Most significantly, because of a perceived “scarcity” of the electromagnetic spectrum, the Court has held that Congress and the Federal Communications Commission may regulate the activities of broadcasters operating over “public” airwaves in a manner that would surely violate the First Amendment if applied to newspapers.

Defamation and Religious Sensibilities

Some may be wondering about- what about defamation? Doesn’t the United States prohibit defamation? Why doesn’t that cover insults to religious sensibilities? In the United States, defamation is a civil action that can be brought by individuals seeking economic compensation for false and malicious statements which injured that person’s character, fame, or reputation. Individuals can recover damages for being defamed.

However; topics, religions, or even groups – as opposed to individual people – are not protected against defamation. The protections afforded to individuals from being defamed differ according to whether the individual who claims to have been defamed is a private citizen or a public figure, and whether or not the topic is of public concern. The Supreme Court has ruled that under the First Amendment that public figures cannot recover damages for defamatory statements unless such statements are made with actual malice (i.e., with knowledge it was false or with reckless disregard for whether it was false.)

The Court noted: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

As President Obama expressed in his address to the UN General Assembly in September 2012: “Here in the United States, countless publications provoke offense…. As President of our country and Commander-in-Chief of our military, I accept that people are going to call me awful things every day and I will always defend their right to do so.”

For private citizens, the Court has explained that there is reduced constitutional value in speech that does not involve matters of public concern and therefore defamation can be established if the statements were false and damaged the person’s reputation without a showing of actual malice. These protections against defamation are protections against individuals and do not extend to groups, including religious groups.

Religions don’t have human rights. Individual humans do. Religions can’t be defamed. Their adherents can be insulted, however, by offensive speech directed at religious beliefs. When they are, it is right to condemn the speech, but wrong (and, in the United States, unlawful) to jail the speaker.

In the U.S., we believe that laws prohibiting so-called “defaming a religion” can also inhibit speech by those seeking to defend the religion, limiting the ability of adherents to respond to the hate speech targeting their faith.

Our experience demonstrates that when adherents have the opportunity to expose the discrimination that fuels hate speech, other members of the public work together to support religious communities. We support remedies for those individuals who are victims of defamation – false statements that damage their reputation. But we believe that these remedies should not include criminal sentences or be used as a reason to ban speech. Instead, as our laws provide, the remedies should include ordering the publication of a correction to a false statement and compensation.

We oppose “criminal libel” laws that allow prosecution for such statements.

In 2015, Freedom House noted that “self-censorship among journalists remains rare in the United States and official censorship is virtually nonexistent,” although it also noted that “an increasing number of news outlets are aggressively partisan in their coverage of political affairs.” This is because the press itself is frequently a source of contention, with conservatives and liberals alike accusing the media of bias. However, most U.S. newspapers make a serious effort to keep a wall of separation between news reporting, commentary, and editorials.

So what lessons does this have for press freedom in Zimbabwe?

Colleagues and friends, that freedom of expression is a fundamental right is obvious in the modern world. Article 19 of the Universal Declaration of Human Rights says “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Unifying diverse, even conflicting political regimes, the Declaration was ratified in 1948 by proclamation of the UN General Assembly with no opposing votes. In my country, this right is enshrined in the First Amendment to the U.S. Constitution. In pertinent part, and I repeat for emphasis, it provides simply that “Congress shall make no law abridging the freedom of speech or of the press.” The great American Supreme Court Justice Oliver Wendell Holmes expressed this amendment’s rationale and centrality to the Constitution in a famous opinion given in 1919. He concluded that “the ultimate good” was best reached by “a free trade in ideas … that the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace.”

Zimbabwe’s Constitution describes press freedom at some length in Article 61. The recognition of the centrality of freedom of expression is not new. Based on the previous Constitution, which was criticized for not having explicit guarantees for press freedom, the Zimbabwe’ Supreme Court cast freedom of expression as a “vitally important right” that lies “at the foundation of a democratic society” and is a “basic condition for the progress of society and in the development of persons” when making a ruling in the case involving the legal case of Munhumeso in 1992. At the time, and today, the Supreme Court said that freedom of expression serves four broad purposes: (1) it helps an individual to obtain self-fulfillment; (2) it assists in the discovery of truth; (3) it strengthens the capacity of an individual to participate in decision making; and (4) it provides a mechanism for establishing a reasonable balance between stability and social change.

The role of the press in facilitating these cannot be emphasized. Zimbabwe and the United States share the desire for freedom of expression and the media and the courts’ interpretation of the statutes in both countries is testimony to this fact. In addition, the 2013 Constitution contains progressive provisions that guarantee editorial independence of public media institutions as well as protection of sources of information.

I am pleased to note that a great number of these provisions have been assimilated in the thinking of local journalists and media advocacy groups. Let me cite two examples. The first, in October last year, over 100 journalists coordinating with MISA-Zimbabwe and the Zimbabwe Union of Journalists (ZUJ) submitted a petition to Steward Bank and Econet Wireless, expressing their disapproval of the two companies’ raid on the offices of a business news agency, The Source. According to local media reports, Econet and Steward Bank officials had earlier raided offices The Source to retrieve what they thought were the sources of information used in writing about the operations of Steward Bank.

The second, which I referred to earlier and is known to most of you, the Constitutional Court’s panel of nine judges, led by Chief Justice Godfrey Chidyausiku, ruled on February 3 that all laws assigning criminal penalties to defamation contradict constitutional guarantees of press freedom.  The ruling was in response to a lawsuit brought by the Zimbabwean chapter of the Media Institute of Southern Africa (MISA-Zimbabwe) and four journalists:  Nqaba Matshazi, Godwin Mangudya, Sydney Saize, and Rodger Stringer.  Specifically, the court ruled that Section 96 of the Criminal Law (Codification and Reform) Act was unconstitutional.  Section 96 says “that any person who, intending to harm the reputation of another person, publishes a statement which when he or she published it, he or she knew was false in a material particular shall be guilty of criminal defamation and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both. I understand a similar lawsuit challenging criminal defamation was filed by Zimpapers and is being considered by the Constitutional Court. The net effect of these actions is to get the country’s justice system to clarify certain provisions of the laws that may be ultra vires provisions of the Constitution. Figures provided by MISA-Zimbabwe show that there were eight cases of criminal defamation reportedly filed against media houses by government officials between 2008 and 2013.  This usually has a chilling effect on how media workers- especially journalists- conduct their work.

These two examples I cite are testimony that journalists here have the power to ensure that legal provisions that violate the ideals of press freedom contained in the constitution are clarified and removed from the country’s laws so that they conform with international principles of freedom of expression and the media. This practice is common in the United States when media houses or journalists feel their rights are violated. It is easy to approach the courts for protection and their decisions often have a profound impact on the thinking of other government agencies.

In the context of economic and other challenges facing the media, media professionalization remains an urgent priority in Zimbabwe, not less the United States. In my country, philanthropic foundations have sponsored projects that focus on in-depth coverage of education, criminal justice, and corruption issues to combat the broader decline in investigative journalism, for example. For example, ProPublica was established in 2007 as a nonprofit, independent news agency dedicated to investigative journalism; it is financed by a variety of foundations. We are working with the Voluntary Media Council of Zimbabwe to ensure the long term sustainability of investigative journalism in Zimbabwe by supporting a yearlong program that will start in June this year. We want to build on the success of the ongoing work engagement by local civic media organizations working to professionalize the media industry and we will be hosting an expert on investigative journalism over a week to work with mid-career professionals and students. We are already supporting the Women Journalists Mentoring Program through the Humanitarian Information Facilitation Center designed to increase the capacity of women journalists to enable them to take up leadership positions in the media.

Finally, I want to address an issue that keeps cropping up among journalists—cyber-security and internet freedom.  This is an issue that the United States has been grappling with for the last decade and I just want to share the approach the U.S. government has taken to ensuring that the Internet itself continues to be secure, open to innovation and interoperable the world over; secure enough to earn the trust of our people, and reliable enough to support their work.

The U.S. government has adopted the International Strategy for Cyberspace. We know that it will take many years and patient and persistent engagement with people around the world to build a consensus around cyberspace, but there are no shortcuts because what citizens do online should not be decreed solely by groups of governments making decisions for them. No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. They should not be prevented from sharing their innovations with global consumers simply because they live across a national frontier. That’s not how the Internet should ever work in our view — not if we want it to remain the space where economic, political and social exchanges can flourish. As such the strategy puts emphasis on ways to harness the best of governments and private sector and civil society as well as the media to manage the technical evolution of the Internet in real time. This public-private collaboration has kept the Internet up and running all over the world. We have an expression in our country: If it ain’t broke, don’t fix it. It would be misguided, in our view, to break with the system that has worked so well for so long.

In conclusion, let me reiterate that the first priority for the United States is free, unfettered, uncensored access to information. We believe the remedy for misinformation is often just more information. The American Founders believed that freedom and free access to information were inextricably linked. They understood that a free press was the foundation of other freedoms. Thomas Jefferson said a nation could never be ignorant and free. Corruption and bad governance thrive on ignorance and perish from freedom of expression. We believe with the current constitutional framework, a free press is possible in Zimbabwe and we will work to support journalists and media groups’ endeavors to pursue a path that leads them to there shared goals.

Thank you for your attention and I am happy to respond to your comments and questions….