The New Presumption Of Transparency

By Wall Street Journal | by L. Gordon Crovitz
Tuesday, June 9th, 2009 @ 12:55AM

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During the Cold War, the joke went that an American explained to a Russian that, in the U.S., anyone could stand in front of the White House and criticize the president. The Russian shrugged and said anyone could stand at the gates of the Kremlin and criticize the American president, too. We live in a new era, as seen in such varied efforts to suppress information as expense fiddling by British parliamentarians, Beijing’s censorship of Tiananmen Square, and libel laws that deter reporting on terrorism.

A growing list of institutions and countries find themselves on the wrong side of this shift in expectations. Information that was once locked away is fair game, and anyone who refuses to play by the new rules is presumed guilty of having something to hide. In Britain, the Daily Telegraph led a media pounding of members of Parliament for claiming personal expenses that, once brought to light, were impossible to justify. An electronic database disclosed British taxpayer funding for clearing the moat at an MP’s country house, massages and even candy bars. The details, following a refusal to disclose them and a threat to prosecute the Telegraph, led to the first forced resignation of the speaker of the House of Commons since 1695. Dozens of MPs will be barred by their parties from running for re-election.

The U.S. Congress is likewise under new scrutiny. House Speaker Nancy Pelosi announced last week that she was “very excited” finally to yield to years of pressure to publish online the details of congressional office expenses. These are now printed in hardly legible volumes kept in a hidden-away cupboard in the Capitol. Whatever the upshot, Mrs. Pelosi said, “it’s very important that it be online, that there be that transparency.” This trend against secrecy is in stark contrast to countries such as China, which censored coverage of the 20th anniversary of the Tiananmen Square massacre last week. Beijing has done such a good job of erasing history that most young Chinese people know nothing about the 1989 crackdown. The PBS documentary “The Tank Man” made clear that the best and brightest interviewed at Beijing University had never seen the iconic photograph of a citizen facing down the tanks.

Yet savvy Web users are finding ways to push the information envelope. An elaborate cat-and-mouse game has evolved between the tens of thousands of government censors known as “mud crabs” and Chinese bloggers trying to evade them. Since the dates “1989” and “June 4” can easily be blocked by Beijing, Chinese Web users refer to the crackdown as having occurred on “May 35.” Perhaps the best example of how the old control model has broken down is the British libel system, a new focal point in the argument that greater transparency can mean greater security.

In the U.S., public figures have to prove that statements about them are false and made with malice — but in Britain a statement that harms one’s reputation is enough to justify a libel action. Defendants must prove that statements are true or “fair comment.” This has a chilling effect on the reporting of damaging facts. English courts thus have become the preferred venue for lawsuits by Saudi and other financiers against reporting on topics such as funding of the groups behind 9/11.

As a result, one book was destroyed by the Cambridge University Press. Another, by an American author and publisher, became the subject of litigation in England despite being available in Britain only through the Web. “If information cannot be freely exchanged, if journalists must fear being sued over information reported in good faith on matters crucial to our defense, matters such as the financial networks supporting jihadist terror, then we cannot make sound security policy,” former federal prosecutor Andrew McCarthy said at a recent conference on “libel lawfare.” This is a useful term to describe lawsuits to suppress facts about radical Islam and terrorism. Authors, investigative reporters and their publishers need help. The Web means that publishing anywhere means publishing everywhere, thus subjecting authors and publishers to litigation in pro-plaintiff jurisdictions. Expos←s that meet U.S. standards for fairness and accuracy may not get published anywhere for fear of litigation.

Among the proposals under consideration is to broaden the law to give American publishers the right in the U.S. to sue plaintiffs who bring what U.S. law would consider abusive lawsuits. There are bound to be unforeseen consequences of this change in our culture toward suspicion of anyone trying to keep information confidential. But more information about how public servants spend public funds is better than less; and political and legal systems that censor news and protect reputations at the expense of facts are on the wrong side of history. Digital technology makes sharing information possible and, increasingly, makes it mandatory. Write Please add your comments to the Opinion Journal Forum. Printed in The Wall Street Journal, page A15

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