ON MY DESK in chambers in the Temple I used to keep a framed cartoon depicting two gentlemen perusing the edi­torial pages of a broadsheet newspaper.

One of them is say­ing to the other: ‘No, I don’t know the phrase, press freedom, but I know of it.’ That sentiment neatly captures the situation for most of us. We know of press freedom, and no one fails to have plenty of opinions about it.

From those who propound the virtues and values of journalistic activity, the phrase comes trippingly off the tongue, as if we were all expected to imbibe its momentous meaning, that the press is the fourth estate of the realm. In his book The Essential Anatomy of Britain¹ Anthony Sampson, describing journalism and the media, wrote:

Who as the watchdogs are to bark at abuses of power? The most obvious has been the Fourth Estate (the phrase was first used by Fielding in 1752 to describe the mob, but later by Carlyle in 1834 to describe the Press).^{[208] [209]}

The implication is self-evident. The evocative phrase implies a quasi- constitutional status. The provenance of the ‘fourth estate’ is, however, misplaced, misunderstood and muddled in thought and speech, even often with deliberate intent to ward off any statutory intervention, whatever the legislation might provide, as if ‘statute’ spells instantaneous danger.

At this point, I cannot resist the temptation to quote Oscar Wilde’s quirkish view of the ‘fourth estate’, from The SouI of Man:

In old days men had the rack. Now they have the press. That is an improvement certainly. But still it is very bad, and wrong, and demoral­ising. Somebody - was it Burke? - called journalism the fourth estate. That was true at the time, no doubt. But at the present moment it really is the only estate. It has eaten up the other three.

I should preface this exploration of press freedom by stating that the citizen’s right freely and publicly to criticise the organs of gov­ernment, the conduct of public affairs (whether by executive, legis­lature or judiciary), and non- governmental organisations, is of supreme importance, and is not to be taken as diminished one iota from what comes hereafter. Lord Hoffmann once remarked, perhaps somewhat incautiously, that there was no question of ‘balancing freedom of speech against other interests. It is a trump card which always wins.’^[210] As Sir Sydney Kentridge QC noted,^[211] the statement is sometimes quoted out of context. In the case (R v Central Independent Television plc), the Court of Appeal refused to prevent a television broadcast of a programme which would have exposed a young child to harmful publicity. Lord Justice Hoffmann (as he then was) was later at pains to explain that the desire to avoid intrusive publicity was not an interest to which English law gave protection, at least at that time. In his Goodman lecture in 1996 Lord Hoffmann sought to explain what he really meant. He said:

Some people have read [the remark] to mean that freedom of speech always trumps other rights and values. But that is not what I said. I said only that in order to be put [in] the balance against freedom of speech, another interest must fall within some established exception which could be justified under Article 10 of the European Convention

A skilful ex post facto rationalisation, no doubt.

My exploration covers initially the exploitation by the media of press freedom. Do the media today enjoy a status separate and dis­tinct from individual rights of free expression, exercising those rights collectively, and if so how and why? Or are speech rights and press rights (as reflected in some countries’ constitutions, specifi­cally the First Amendment to the US Constitution) co-extensive, in the sense that they were used interchangeably in the eighteenth century? Whatever the answers to these questions, is not now the time for re-thinking the freedom of the press (which has probably now transmuted into freedom of the media)?