Post-Soviet Media Law & Policy Newsletter
Issue 10 Benjamin
N. Cardozo School of Law September 10, 1994
CASE STUDY IN MEDIA REGULATION:
The 1993 Elections and the Information Arbitration Tribunal
Over the summer months, the Russian media have continued
to be threatened by severe economic and political pressures. In July, for
instance, the Duma attempted to increase governmental control over the
media by adopting a measure that would have made broad categories of programming
mandatory for all state- owned broadcasting companies, including Ostankino
and the Russian State Television and Radio Company. While the law ultimately
was rejected by the Federation Council as overly intrusive and possibly
unconstitutional, it illustrated the continuing struggle to define the
role of the media in the young Russian democracy. This struggle involves
not only the obvious political battles for control of the media, but also
the broader efforts within society to develop a set of norms with respect
to the media that adapt democratic values to the Russian cultural context.
In evaluating the prospects for democracy in Russia,
it is important that Western observers understand these norms and how they
fit in with Russian conceptions of role of free speech in a democracy.
The approach that was taken toward the media in last fall’s election campaign
merits revisiting, for it is a source of insight as to the values that
drive the evolving conception of the role of media in Russia. In particular,
the decisions of the Information Arbitration Tribunal (IAT), a body created
by the Statute on Information Guarantees (October 29, 1993) to ensure equal
access and fair media coverage to candidates in the fall elections, provides
a valuable case study for the evolution of media norms in Russia. Although
the IAT only had power to issue warnings and recommendations, it was given
an active role in monitoring the elections and was expected, in the words
of Deputy Press and Information Minister Dmitrii Tsabriia, “to watch and
listen day and night, day and night, day and night, to listen and to read.”
Below I will examine the IAT’s approach toward equal access for candidates,
its response to attempts by government officials to limit criticism of
the draft constitution, and the notion of civility that prevailed in the
IAT’s decisions.
Access to the Mass Media During the Election Campaign
One of the first tasks of the IAT was to work out
the details of access for candidates to television and radio air time.
Thus, the IAT was involved in negotiating with the heads of the main state-
owned television companies (Ostankino and Russian Television) concerning
the amount of free air- time to be offered to candidates, the times of
the broadcasts and the rates at which paid television time would be available.
In addition, the IAT was entrusted with ensuring that the media treated
candidates in an even- handed manner. However, as Aleksei Simonov, a member
of IAT noted, it was “hard to guarantee total freedom from bias because
television, radio and newspapers depend[ed] on the government for funding.”
Although IAT was created by Yeltsin, it issued a warning
against “hidden political commercials” on the part of journalists and television
anchors, many of which promoted candidates within the Yeltsin government.
In particular, the Tribunal noted that journalists often used interviews
with officials who were also running as political candidates to give the
official an opportunity to campaign on behalf of his or her party under
the guise of news. Another ploy that was condemned by the Tribunal was
the practice of running footage of particular candidates even though the
story was only tangentially related the particular candidate. At a time
when access to the media by political candidates was strictly regulated,
the Tribunal said, these hidden advertisements represented “ethical and
legal” violations on the part of those responsible for the programs.
Interestingly, although it was rumored that IAT would
consider the removal of Viacheslaw Bragin as head of the Ostankino state
television company because of his reputation as being biased in favor of
Russia’s Choice, Bragin was not removed until after the election, when
he was fired by Yeltsin himself. Ironically, one of the reasons Bragin
may have been fired was the particularly misguided decision to air a film
on the Ostankino channel about candidate Vladimir Zhirinovsky on the eve
of the election. While the film (entitled “The Hawk”) was intended to expose
Zhirinovsky’s fascist inclinations, many believed afterwards that it actually
enhanced his success at the polls the next day. While Bragin was criticized
by Yeltsin for helping Zhirinovsky to win the election, the IAT criticized
him for showing a film that insulted Zhirinovsky.
Limits on Criticism of the Constitution
In late November, the IAT was faced with a new challenge,
when Yeltsin and other members of his government sought to limit criticism
of the draft constitution by political candidates. At a meeting called
by Yeltsin that included representatives of the thirteen political
parties competing in the election, Yeltsin reportedly asked the candidates
“not to touch” the constitution. Further, he threatened to take away the
parties’ free air time if they deviated from their own platforms to criticize
the constitution. Yeltsin was reacting to criticism of the draft constitution
by a number of candidates during their free television appearances. One
candidate, Stanislav Govorukin of the Democratic Party of Russia, said
that the draft constitution was “stained by the blood spilled October 4.”
At the same time, officials of Yeltsin’s State and Law
Administration went even further than Yeltsin, saying that candidates and
political parties who criticized the constitution would not only lose their
free television time but would also have to withdraw from the elections.
According to Anatolii Sliva, deputy chief of the State and Law Division,
electoral associations and candidates could “use the right to criticize
[the constitution] on the condition that they delete their associations
and candidacies from the Central Electoral Commission registration list”
(ie. withdraw from the campaign). He argued that in collecting signatures
to participate in elections to a body that was to be created by the draft
constitution, the parties had essentially promised those who signed in
support of their candidacy that they would uphold the new constitution.
Thus, calls on the electorate to vote against the draft constitution would
be a “distortion of the electorate’s will expressed during the signature
collecting campaign and [a] formal refusal to stand in elections to the
new legislature.”
Following Yeltsin’s warning, First Deputy Prime Minister
and Minister of the Press Shumeiko (also a deputy candidate) sought to
enforce the position taken by the State and Law division by filing an official
complaint with the IAT and the Central Electoral Commission, asking that
both the Communist Party and the Democratic Party of Russia be eliminated
from the election campaigns because of their criticism of the draft constitution.
Shumeiko’s action was consistent with the general views that he had expressed
on the role of the media in Russia. In particular, after his appointment
as Minister of the Press, he argued that the task of the media was to create
a new “democratic ideology.” Those media who helped to construct this ideology
would receive subsidies, while those that did not would be deprived of
subsidies. Shumeiko had also complained that “our state has no kind of
ideology agency, and this is having a very bad effect on everything....[T]he
responsibility for what we put into people’s minds rests with the news
media.”
In the end, Shumeiko’s action was widely denounced,
even by Yeltsin’s party, Russia’s Choice. Further, the IAT unanimously
rejected his complaint, holding that candidates and parties were free to
“independently determine the form and content of their electoral performances
and speak out on any issue including the draft constitution.” In its explanation
of the decision, the IAT confirmed that criticism of the constitution
was lawful, but limited its holding by saying that such criticism should
be “backed by clear argument and concrete alternative proposals, [and should]
not go beyond certain bounds of propriety . . . [and should] not become
the sole topic of election statements.”
Following the decision of the IAT, Yeltsin backed down,
denying that he had tried to limit criticism of the constitution and saying
that constructive criticism would be welcome. Subsequently to this episode,
government representatives changed their strategy, focussing on pushing
the constitution as aggressively as possible, and calling upon the media
to do so as well. Shumeiko, for instance, called on the mass media, especially
at the local level, “to radically intensify” the propaganda of the draft
constitution.
Civility and Limits on Criticism of Candidates and Officials
The IAT’s negative reaction to Yeltsin’s attempts
to limit discussion of the constitution was in marked contrast to its response
to his efforts to encourage more “civilized” campaigning. Yeltsin began
to complain early on in the election campaign that his name was being “mixed
with dirt.” Later, at the same meeting with political candidates in which
he had tried to limit criticism of the draft constitution, Yeltsin called
for an end to the “mud- slinging” and said that the government had the
right to “defend voters” from candidates who abused their free air time
in order to criticize Yeltsin and his administration. And Yeltsin’s spokesman,
Viacheslav Kostikov, complained that some candidates were issuing “streams
of lies, garbled facts, social demagoguery and pure invective” that “flagrantly
upset all the rules of play.”
Similarly, the IAT issued numerous warnings to candidates,
based on Article 25 of the Statute on Information Guarantees, prohibiting
abuse of the right to campaign by disseminating false information that
demeans the honor or dignity of other candidates and parties and on Article
18, requiring that candidates use the bulk of their campaign time to address
their own platforms. Among the politicians who were warned that their campaigning
violated legal and ethical norms were Stanislav Govorukhin, Nikolai Travkin
and Vladimir Zhirinovsky, who were censured for using more of their campaign
time to attack their opponents that for laying out their own positions.
The IAT also declared that Yegor Gaidar had insulted Zhirinovsky when he
praised Zhirinovsky for moving beyond the “Hitler of Soviet films” to become
the “real Hitler of 1992.”
Thus, when Yeltsin sough to reach a “gentleman’s agreement”
with candidates of the thirteen political parties to limit criticism of
one another, many of his most severe critics, including Nikolai Travkin
(Democratic Party of Russia) and Gennadii Ziuganov readily agreed. According
to accounts of the meeting, in fact, all of the political blocs agreed
“not to criticize each other ... so as not to shock foreigners by ‘uncivilized
manners.’” At the meeting, even Vladimir Zhirinovsky urged candidates to
“refrain from embittering [the campaign] to the extent of slandering society.
The main thing for all is to be patriots of Russia.”
Conclusions
The approach that was taken toward speech with respect
to the three issues raised above (access, criticism of the constitution,
and civility) suggest that the IAT held a vision of democracy and free
speech that conforms closely to that embodied in the governmental process
model of Alexander Meiklejohn. This model focuses on speech as a means
of ensuring wise decision- making in the governmental process. Drawing
on the metaphor of democracy as a town meeting, Meiklejohn reasons that
the objective of speech in a democracy is to create an informed electorate
that will be qualified to make the best possible choices when voting. This
town- meeting approach also contains built- in limits to speech, as the
moderator of a town meeting may refuse to give the floor to someone who
will merely make a point that has been made already. Further, speech that
is not civil should be suppressed, as this is likely to hinder fruitful
debate rather than contribute to it.
In contrast, the more radical vision of democracy represented
by the public discourse model of American scholars such as Robert Post
appears to be far removed from the prevalent values that were expressed
during the Russian election campaign. The public discourse model, unlike
the governmental process model, does not distinguish between the governed
(the participants in Meiklejohn’s town meeting) and those who govern (Meiklejohn’s
moderator). In the public discourse model, it is impermissible for the
state to impose a conception of national identity from above by virtue
of its role as moderator, as this would violate the norm of self- government.
Rather, citizens must develop the national identity through public discourse.
In this model, the ability of all citizens to participate in societal debate
in all of its forms, is the essence of democracy. It is only through this
process that individuals can define themselves freely and reconcile themselves
to the majority will, even when the outcome of the voting process does
not reflect their preferences. Further, Meiklejohn’s conception of the
government as moderator is inconsistent with the public discourse model
because it limits the ability of society to set its own agenda. Thus, whereas
the objective of the governmental process model is the formulation of wise
government policy the public discourse model sees speech in a lies instrumental
way.
The IAT, like the moderator in Meiklejohn’s town meeting,
was created to serve as a guarantor of equal access to the media in the
Russian election campaign. As moderator, the IAT was expected to protect
the fairness of the competition. In doing so, it would also ensure healthy
debate, thereby allowing the electorate to make an informed decision. This
vision rejects the autonomy of the public discourse model, in which government
and the governed are one and the same, in favor of a heteronomous model,
in which the government regulated the objective of good government.
The position taken by the IAT with respect to criticism
of the constitution also conforms closely to Meiklejohn’s governmental
process model. Here, the efforts to force through the adoption of a constitution
were clearly motivated by self- interest in the part of the government
and were rebuffed by the IAT (all of whose members were appointed by Yeltsin)
as well as Yeltsin’s own party. This broad rejection appears to have been
driven by the sense that a referendum concerning such an important issue
as a new constitution could not be meaningful without the opportunity for
societal debate. Criticism for the sake of criticism was not seen as an
important objective, however. Rather, it was to be permitted only to the
extent that it allowed Russian voters to make a wise choice in the election
and referendum. Again, thee was an underlying assumption that it was appropriate
for government to play a role as moderator in order to provide citizens
with the opportunity for useful deliberation. As in the case of access,
there was a heteronomous vision of Russian society that was inconsistent
with the public discourse model.
Finally, throughout the election campaign, a deep commitment
to norms of civility prevailed at all levels of society and in the IAT’s
decisions. The warnings and recommendations of the IAT, the “gentlemen’s
agreement” between the political candidates and commentary in the press
all appeared to accept the idea that candidates should campaign in a “civilized”
manner, which in some cases meant refraining from criticizing opponents
at all. Further, there was no expectation that these norms should be relaxed
with respect to public figures and officials. This willingness to accept
the limits imposed on free speech by norms of civility suggests once again
that Russian society does not view speech from the perspective of the public
discourse model. Rather, the government process model fits more closely
with the approach taken during the election campaign, in that this model
envisions limitations on speech that is not civil.
It is likely that the deeply held belief in civility
in Russia is a product of its Soviet history. Throughout the communist
era, those who fell out of favor with the party were vilified by the media
and had virtually no legal recourse, either for damages or to redeem their
reputations. This history of abuse perpetrated by and through the media
may explain the importance of civility in the evolving Russian democracy.
Ironically, the attempts to prevent the abuses of the past by limiting
candidates’ criticism of one another, in combination with provisions in
the Statute on Information Guarantees to reduce bias by limiting commentary
in the part of journalists, led to widespread dissatisfaction with the
media’s coverage of the election campaigns. The lesson of last fall for
the Russian media may be that Russian society must continue to search for
ways to reconcile the goals of achieving constructive debate, unbiased
media coverage and civility among candidates.
Melissa Dawson
University of California, Boalt Hall School of Law