Forget Leveson. If the press, always keen to be above the law, must remain free of state control (and it must), it cannot expect state protection. It must be prepared to bear the wrath of the individuals it lies about and smears. Time for an Athenian solution.
Since there was no Crown Prosecution Service in Athens, the state prosecuted no one. All prosecutions, whatever the charge, were brought by individuals against other individuals, and strenuous efforts were made to settle a case before it ever came to court.
If that failed, proceedings were carried out in a court with no clerks, barristers, rules of evidence, or even a judge, but simply a panel of randomly selected Athenian citizens aged over 30. For the litigants, it was each man for himself. The injured party and the defending party personally gave speeches of the same length; laws were quoted, evidence read out (no cross-questioning); and without further discussion, the panel voted on the verdict.
The point is that the state was not taking anyone on; it was simply providing the legal framework for the settlement of a personal dispute between two individuals (hence all the efforts to settle it privately beforehand). And this principle — sor’ i’ ou’, lads — could continue in the event of a ‘guilty’ verdict, if (as happened) there was no fixed penalty. In that case, each litigant proposed a punishment — fair enough in a personal dispute. Did that perhaps encourage both sides to compromise a little? Anyway, the panel voted on the two options, and that was that.
This system is perfect for press regulation. The dispute must be seen as one between individual and proprietor, Athenian-style, i.e. give the injured party the chance to treat the papers as they treated him, one on one, no holds barred. So if initial arbitration fails, empanel a citizen jury, with no judge, no barristers, injured party vs proprietor, one speech each, that’s it. With the prospect of their own heads on the block before a furious citizenry keen, in the case of a guilty verdict, to select the injured party’s choice of punishment, proprietors might think twice about what they print. The papers dish it out freely. Let them take it freely too.
This article first appeared in the print edition of The Spectator magazine, dated 8 December 2012