THE ‘FOURTH ESTATE'

It was almost certainly Thomas Babington Macaulay who first coined the phrase, when he referred to the reporters in the gallery of the two Houses of Parliament. It appears in an essay which Macaulay wrote in 1828 on Hallam’s Constitutional History, contributed in the Edinburgh Review of that year.

Or turning now to the Government of men. Witenagemote, old Parliament, was a great thing. The affairs of the nation were there delib­erated and decided; what we were to do as a nation. But does not, though the name Parliament subsists, the parliamentary debate go on now, everywhere and at all times, in a far more comprehensive way, out of Parliament altogether? Burke [sic] said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than them all. It is not a figure of speech, or a witty saying; it is a literal fact, - very momentous to us in these times. Literature is our Parliament too. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy: invent Writing, Democracy is inevitable. Writing brings Printing; brings universal every­day extempore Printing, as we see at present. Whoever can speak, speak­ing now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority.

While Carlyle’s interpretation of a free press led him rhetorically to question whether the nation’s affairs might be conducted in a far more comprehensive way outwith Parliament, Macaulay’s phrase

⁵ T Carlyle, Heroes and Hero-Worship, vol XII (London, James Fraser, 1841) 194. was focused on the proceedings in Parliament, the essential ele­ment being the reporting of parliamentary proceedings. In a country which was then run by the Bishops, the aristocracy and the House of Commons, it would seem a step too far nowadays to treat the Macaulay statement as meaning the fourth estate of modern govern­ment as a check and counterbalance to the established three estates of executive, legislature and judiciary. Macaulay would, however, have been only too aware of the historical and contemporaneous significance of the press.

The introduction of the printing press in the sixteenth century brought about sweeping changes. The press promised an essential element in the chemistry of what were the revolutionary new theo­ries of self-determination in the body politic. The printed word became an undeniably effective means of carrying speech beyond the accustomed range of the speaker and within the grasp of the individual as a potential electorate. Regulations grew more sweep­ing as established political thought, through the printing presses, was threatening to those in power. Throughout the seventeenth cen­tury, prosecutions for seditious libels flourished in an atmosphere that smacked of official supervision. Professor David Lange, in an illuminating 1975 article, The Speech and Press Clauses, wrote:

And yet illicit presses continued, sheet by sheet, to reinforce the English commoner’s growing awareness of himself and his nascent political power. Though another two centuries (the 17th and 18th) would pass before the restrictions would begin to wither, the struggle itself was enough to assure the continued legitimacy of the concepts of free speech and press for the common man.^[212]

The terms ‘freedom of speech’ and ‘freedom of the Press’ were used interchangeably in the eighteenth century, particularly among per­sons who were interested in the terms at a conceptual level.^[213] It was in fact the heritage of the struggle that the colonists brought with them to the New World, and finds its expression in the First Amendment in the Constitutions of all the independent states which established the provision.

In the first place, I observe that there is not a syllable concerning it in the constitution of this State; in the next, I contend that whatever has been said about it in that of any other State amounts to nothing. What signifies a declaration that ‘the liberty of the press shall be inviolably preserved'? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracti- cable.^[214]

It was licensing of the press that lay at the heart of the battle to escape the shackles of governmental control. ‘Freedom of the press’ was the freedom of that press which had been enslaved, and that was every press, and every use of every press. The old verbiage of one of the old taxes on knowledge, under which the newspapers and other forms of printing were restricted, clearly illustrates the definition:

Every person possessing a printing press or types for printing, and every typefounder, was ordered to give notice to the clerk of the peace. Every person selling type was ordered to give an account of all persons to whom they were sold. Every person who printed anything also had to keep a copy of the matter printed, and write on it the name and abode of the person who employed him to print. ^[215]

An aside is warranted: from its Royal Charter in 1557, the Stationers’ Company in London kept a series of registers in which old books (including newssheets^[216]) printed by members of the Company were entered, thus ensuring for the owner the exclusive right to print that book. A further element to this form of registration gave the State a degree of control over what was printed.

Macaulay would doubtlessly have been reflecting the recently acquired freedom of the press from prior restraint to report the proceedings of Parliament. In Hallam’s Constitutional History of England, with which Macaulay was directly acquainted, the former wrote: ‘We read the noble apology of Milton for the freedom of the press with admiration; but it had little influence on the Parliament

to which it was addressed.’¹¹ The issue for the press was to be unshackled and independent, with absolute freedom to publish. As Hallam further stated: ‘the liberty of the press consists, in a strict sense, merely in an exemption from the superintendence of a licen­sor’ - hardly the concept of a constitutional status within govern­ment, merely an assertion to everyone’s freedom of speech not to be restrained by the prior intervention of officialdom.

Macaulay’s phrase, even assuming that it could claim to be authoritative, was to accord its function as a chronicler of parlia­mentary proceedings, and nothing more. It reflects only a fraction of the freedom that one finds in Article 10 of the European Convention on Human Rights and Fundamental Freedoms. And Macaulay’s dic­tum addresses directly another freedom, the openness of the parlia­mentary process and, by analogy, the right to open justice. Where the public has access, so do the agencies of the media. There is a tendency, as I will observe later in the context of Family Courts, to fudge the two concepts, of transparency for proceedings conducted in public and freedom of expression. A leading case in the US Supreme Court neatly illustrates the point. In Richmond Newspapers v Virginia¹² it was argued that the First Amendment primarily guarantees the press and the public a right of access in criminal trials.

It is hard in any event to argue that freedom of speech is involved when people want to observe a criminal trial and when the speak-

¹¹ H Hallam, Constitutional History of England, 2nd edn (London, John Murray, 1829). Milton’s apology was the Areopagitica: a Speech of Mr John Milton for the Liberty of Unlicensed Printing to the Parliament of England in 1644.

¹² 488 US 533 (1980).

¹³ [1913] AC 417.

¹⁴ 488 US 533 (1980), 579-80.

ers at the trial, including the prosecutor and the accused, want the trial to take place in private. Likewise in the civil courts, the claim­ant and respondent may wish to exclude the public from their dis­pute. Freedom of speech does not include the right to hear something a speaker does not want you to hear. Article 10, moreover, confirms the individual’s right to silence, even if it also implies the journal­ist’s right, even duty, to investigate.

The right to open justice derives, not from freedom of speech pro­visions, but from a right retained by the people, and by the press only derivatively of that right. I observe that Professor Jaconelli’s book Open Justice^[217] - 350 pages long - contains only one fleeting reference to freedom of the press.^[218] While a defendant or the parties to criminal or civil proceedings have the right under Article 6, the openness of the court proceedings is a common law right vested in the public. Public means the citizenry, including representatives of the press. The confusion between two distinct freedoms seems not to have been appreciated in the recent controversy over Family Courts, a familiar failure of English lawyers to conceptualise.^[219] Observation is the primary purpose of open justice. As Mr Justice Walsh in the Supreme Court of Ireland observed,^[220] ‘the actual pres­ence of the public [and the press]^[221] is not necessary, but the doors of the courts must be open to satisfy the requirement that justice must be administered in public.’