On January 21st, Hungarian WATCH sat down with Peter Molnar for a 3-hour interview. Molnar, a former law school roommate of Viktor Orbán and one of the founders of the Fidesz party (back when both Orbán and Fidesz were liberal) is a senior research fellow at the Center for Media and Communication Studies at the Central European University in Budapest. He was a member of the Hungarian Parliament from 1990-1998 and was one of the principal drafters of the 1996 Hungarian media law.
NOTE: The transcription below has been slightly edited for the sake of clarity.
FREEDOM OF SPEECH: HUNGARY’S TRAGIC BUT WORTHY TRADITION
Peter Molnar: Hungary, I think, should really go the opposite direction in regard to what is happening now with the media law, because Hungary has a very worthy tradition of freedom of speech. The 19th and 20th century freedom fights demanded the abolishment of censorship, and freedom of speech. People fought for it, people died for it. It’s also a tragic tradition. It’s not the tradition of a long established democracy where people have to fight for freedom of speech from time to time, but it exists continuously nonetheless. It is rather a tragic tradition that had long breaks; but it’s still a tradition and it’s very important to emphasize.
This is like a golden value. We really have to care about it, we really have to be proud of it, we really have to respect it when we create policies that affect freedom of speech. Hungary should play a role according to this tradition in international debates as well. Not the role we have now in which other countries criticize Hungary for restricting freedom of speech—and, unfortunately, mostly rightly so. There is some exaggeration and incorrectness here or there, but the criticism is, unfortunately, mostly right. This should not be Hungary’s role! Hungary, based on its tradition, should be one of the leading voices for freedom of speech, including all relevant common European policies.
Here are three major chapters of the Hungarian free speech tradition:
First, in the 1848 Civic Revolution that started on March 15 in Pest, there was a list of 12 demands that was the goal of the Revolution. The text starts, “What the Hungarian nation demands.” Guess what the first demand was. The first point is freedom of the press, no censorship! It’s not in the constitution but it brings to mind the 1st Amendment of the US Constitution. I think that drafters of both documents realized that without freedom of speech, we cannot discuss any other freedom or any other public matters.
So that’s the starting point of any nice way of trying to organize a political community: to establish that we have free discussion, free open public discourse. Just as Justice Brennan put it in the Sullivan Case (1964), that “debate on public issues should be uninhibited, robust, and wide-open.”
So the first point of the 12 demands is a fundamental part of the free speech tradition in Hungary. It’s also a tragic tradition because the 1848/49 revolution and freedom fight was crashed. At Arad, 13 generals of the revolution were executed, for example. It’s a tragic story, but I claim that it is still a living tradition.
Second, in 1956, in the famous anti-Stalinist revolution, the push for freedom of speech and of the press was also passionate and very strong. One of the most dramatic events of that revolution was the siege of the Hungarian public radio. At that the time, the radio was the main mass media. And so it was a very, very strong wish and demand to have the radio be free, to stop the lies of the Communist dictatorship’s propaganda machine.
Third, I mentioned already the democratic opposition that produced the underground press at the end of the ‘70s and in the 80’s. This is also a very important continuation of the Hungarian free speech tradition. In Communist Hungary, there were brave people who believed that freedom of the press and freedom of speech were so important that they organized the free press underground while living under a dictatorship. They put their names into the paper and the Communist dictatorship bugged all their apartments. The dictatorship was softer then, but the organizers of the underground press couldn’t have known what repercussions they faced.
Hungarian WATCH: You talk about how Hungary should be in the position to help others because of this tradition of freedom of speech and of the press. This ideal of yours seems very far away and I wonder, with the damage that Orbán is doing right now, if it’s irreparable. It seems that this worthy tradition is in danger of being forgotten by people who do not know the history.
Molnar: I will put it this way: we have been trained to fight, work for and uphold this tradition in situations when it was not easy.
Of course, it’s very important, I think, to emphasize that now we are in a totally different situation from the 19th century freedom fight, and from the anti-Stalinist freedom fight in 1956. Then, Hungary had to fight oppressive outside powers. Now Hungary is part of the Council of Europe and the European Union and it should be possible to conduct this whole debate about the new media laws by public discussion and court decisions, and all sorts of procedures by the institutions of a constitutional democracy. But it will require a lot of work and the participation of many citizens, both local and global. It can require some risk taking. Some people might feel that they may lose their jobs if they fend for this freedom against the will of the government. Of course, this is part of the problem. We just have to act as free people.
John Stuart Mill, in his book called “On Liberty,” argues that we should let people express their opinion because, among other reasons, even if the whole community thinks that they are mistaken, even if a community knows the truth about a public matter, if someone expresses an opposite view, if you allow that person to express his or her view, it can help the community to recognize the truth in a more lively way.
So the new Hungarian media laws, in a way, can help Hungary and even help Europe and the whole global community to have a fruitful discussion about what it means to have freedom of the press in a democracy. What does it mean to have an independent supervisory body which oversees the media system in a country? Or independent supervisory bodies which oversee the work of the public media in democracies? What does this independence mean? I think this can be and should be a crowded debate in which other democracies can look at their practices as well.
HW: This makes me think of times when Orbán says to the EU and the foreign press, “Everybody is pointing their fingers at us, but don’t be hypocrites, look at your own policies!” But this seems, to me, to be a way for him to deflect what is going on here in Hungary. I think that it would be great if the world could learn from Hungary’s mistakes and that this new media law could simply serve as a “teachable moment” to all nations, but I think the reality is darker than this picture. Am I mistaken? Am I being over-reactionary?
Molnar: Well, I see your point and I see that I should put it more clearly. Of course I don’t mean to bring up a similar argument to what Orbán said. Because, what the current government is doing in Hungary is rejecting criticism. They say that this criticism comes from people who are misinformed and biased. They also say that if the European Commission will bring up some specific problem, they might change the law. [NOTE: this interview took place before the Commission issued its demands to Hungary.]
Part of their argument is that all criticized restrictive elements of the laws can be found in other European countries’ media laws as well. This is exactly what bothers me; I think it should bother everyone in Hungary, because being mindful of the worthy tradition that I described, Hungary should not be in a shameful position where the government is arguing that the restrictive elements of the regulation can be found in other countries’ regulations as well. It is like someone is saying, “Okay, I am a criminal, but others are criminals too!” Of course the government does not mention that these elements are restrictive. But in the context of debate, they are clearly saying that those controversial elements, which are the restrictive elements, can be found elsewhere as well.
It is important to highlight the psychological element of the debate. It seems to me that the government is sort of “frustration driven,” unfortunately. And I am not saying this to mock them. I am not saying anything to mock them. I want to be in the conversation with them, and want them to hear my argument and answer it. It seems to me that part of their frustration is that see it this way: “Okay, at the end of Communism experts from Western democracies told us what the ideal arrangements for independent press are, but then we have been having troubles creating those ideal arrangements and we have been suffering from those troubles. And in the meantime we see that independence of the media doesn’t seem to work so well in those Western democracies either!” And there is a little bit of truth in that.
I talked about the notion of self-restraint earlier. I think that’s a crucial point in this debate. Practicing self-restraint when creating legislation about the media, and then practicing self-restraint in application of that legislation, is a challenge for every politician in every government. And other governments make mistakes as well in exercising the necessary self-restraint. But, of course, it is not a reason for the Hungarian government to do that. It is especially not a reason to be a champion of failing to exercise that self-restraint!
The combination of some of the most restrictive elements of the law, which are up for interpretation by a media board that has almost unlimited power and is under the exclusive influence of the governing majority—this is really, well…Hungary is most likely at the top of the list of media restrictions amongst countries that can call themselves a democracy. Many people would now question whether Hungary can continue to call itself a democracy. But I don’t want to go further into that point right now.
I think some politicians and governments from other countries should speak up in a way that would include critical self-reflection of their own democracy and say, “Okay, we’ve made mistakes too, these things happen in democracies sometimes, however, in a democracy, mistakes should be regarded as an exception and not the norm.” This would help to make more convincing arguments against the new Hungarian media laws.
Also, it’s important to clarify the context of this story in the European Union. Part of the argument that Hungary’s current government is making is that the new media legislation simply implements the European Union’s new Audiovisual Media Services Directive.
Here is the problem with this argument: the short summary of the story is that the EU created the Television Without Frontiers Directive in ’89; it was amended in 1997. That directive was only about television and was obviously adopted before the Internet age. It was a piece of traditional media regulation, which means that television as well as radio—which can be characterized as “push media” or media that typically puts the audience in the position of a passive consumer—can be regulated more than printed press or speech in other parts of the public discourse; the state has the right to create special legislation and one way to characterize it is that it is “consumer protection,” that applies for “push media.” This has been an accepted way of creating regulations that was also justified and to some extent still justified by the scarcity of broadcasting airwaves.
So, for speeches at demonstrations, articles in the newspaper and, when the Internet became more widely used, anything posted on Internet, only the general laws for public discourse applied (like criminal code, civil code, copyright law.) There was a very important and clear distinction that the printed press and the Internet—especially the Internet—is different from radio and TV since both mediums put the audience not in the position of being passive consumers but active users who can make individual, free choices at any moment. Therefore, the consumer protection rationale for special regulation does not apply. Members of the public can protect themselves by making their own free decisions. Of course, it’s not about having no limitations at all on the printed press or on the Internet, because, as I said, the general laws do apply. For example, even in the US, advocacy that is directed to inciting lawless action and is likely to incite such action can be banned under the Brandenburg case.
Traditional media regulation (which applies to radio and TV) is not justified in the case of the Internet and the printed press.
This is the distinction we had in Hungary, and this is the distinction the European Union had—until it created the Audiovisual Media Services Directive (AVMS Directive). With this new directive, the EU extended the Television Directive to a growing portion of Internet content! There is a relatively narrow definition about which parts of Internet content the directive applies to, but part of the definition is motion picture/moving images, and since moving images are playing a bigger and bigger part on Internet, the directive covers more and more content.
This directive is a mistake because there is no clear, sound justification for extending the regulation. The regulation most likely, at least largely, won’t work in the case of the Internet anyway, so it’s not realistic. I think it’s arguable that it was a product of the post-9/11 era, when such restrictive regulations have been pushed through without enough careful consideration.
A very important argument that I have been stressing while criticizing the new directive is that it helps authoritarian governments. When they extend regulations to the Internet, they are and will be able to say that the EU did the same. And for an EU member country like Hungary, they would not just say that the EU did the same, but they will say, “We have to do this. As an EU member country, we have to make it part of our national law. We have to implement the directive in Hungary.”
Of course one has to see that the new media laws in Hungary went far, far, far beyond this directive, and, therefore, go against it. I think that the European Commission should come to the conclusion that part of the huge problem with the media law is that it is a breach of the AVMS directive as well. But I think that this directive significantly muddied the waters in the debate.
When I argued against the draft directive, it was part of my argument that extending the scope of the TV directive was done more with the situation of Western European democracies in mind, where independent institutions of constitutional democracies, including the courts, are more established. In those countries, even with the new directive and, as a result, new national media regulations expanded to parts of the Internet, there is a much better chance that the media supervisory boards won’t abuse these new regulations. But in the former communist countries of Central Europe and East Europe, the tradition of having independent institutions of constitutional democracies, including independent media supervisory bodies and courts, is weaker and less established.
It was foreseeable that the new directive will provide an opportunity to restrict freedom of speech and the European Union should have better considered the circumstances of the new democracies when it created new European legislation that impacts freedom of speech and freedom of the press. There is a different level of risk of such regulation in the younger democracies. Our European Union successfully blurred the previous regulatory distinction between television and the Internet, and there are governments, including Hungary’s, that are ready to abuse this mistaken part of the common European media policy.
As I emphasized, the harsh criticism of the new Hungarian media laws is largely correct, unfortunately. But it also has to be understood that extending the European media regulation played a very unfortunate role in this story. Of course, the highly necessary debate about this requires a self-critical look at our common European policies. Time is up for that self-critical look as well. Building on its worthy tradition of freedom of speech, Hungary should argue against the unjustified extension of the European TV regulation.