The Trouble With Transparency

Abstract This article argues for a more complex understanding of how the ethic of transparency is used within American journalism. Following the ethical theories of Jürgen Habermas and Michel Foucault, it suggests that transparency has become central to debates about identity formation, disputes over professional jurisdiction, and how journalists have come to cover political events. Recognizing the complex role that transparency plays within journalism, it calls for the articulation of an ethical framework that sees transparency less as an instrumental value and more as a normative goal. Keywords: FoucaultHabermasjournalism ethicssurveillancetransparency Notes 1. Not all news media reported the story behind the story. Generally speaking, few newspapers outside of the United States gave much coverage to this aspect of the story. The Times (London) was one of the few newspapers that revealed the constructed nature of the event (Watson and Charter, Citation2003). However, the reason for this is unclear and deserves more study. 2. This is not meant to imply that transparency is the only place where the fight for jurisdiction takes place. As Abbott notes, jurisdictional battles take place in different venues. For example, the jurisdictional battle in US journalism is also being played out not only over questions of transparency, but also over questions of legal rights. These debates are currently taking place in legislative bodies and courts as the application of so-called shield laws (laws that allow journalists to protect their sources of information) to bloggers are determined. For an example of how California courts have dealt with the jurisdictional battle, see O'Grady v. Superior Court of Santa Clara County, 139 Cal.App.4th, 1423, 2006. 3. This formulation is the work of Solum (Citation1989). The complete rule, as put forward by Solum, is: Rule of Participation—Anyone capable of engaging in conversation is allowed to participate. Rule of Equality of Communicative Opportunity—Each person can participate under the following: All proposals can be questioned. New proposals can be introduced. Attitudes, sincere beliefs, wishes and needs can be expressed. Rules Against Compulsion—Compulsion arising from either inside or outside the discourse is not allowed to prevent the right guaranteed in nos. 1 and 2 above (1989, pp. 96–7). 4. Habermas has articulated discourse ethics in the following way: Only those norms may claim to be valid that could meet with the consent of all concerned, in their role as participants in practical discourse. For a norm to be valid, the consequences and side-effects of its general observances for the satisfaction of each person's particular interests must be freely accepted by all. (A)n ethics is termed "universalistic" when it alleges that a moral principle, far from reflecting the intuitions of a particular culture or epoch, is valid universally (Citation1989a, p. 40). 5. Michael Kelly (Citation1994) argues that Foucault was doing nothing more than using the Panopticon to study the French penal system. He criticizes Habermas's misreading of Foucault by suggesting that he was trying to apply his ideas to broader society. Kelly suggests that Foucault was merely noting Bentham's attempt to apply Panopticism to other institutions within society (1994, p. 367ff). It is, however, easy to see how Foucault's imprecise writing has led to these types of interpretations. For example, Foucault ends the chapter on Panopticism with several questions: "Is it surprising that the cellular prison, with its regular chronologies, forced labour, its authorities of surveillance and registration, its experts in normality, who continue to multiply the functions of the judge, should have become the modern instruments of penalty? Is it surprising that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?" (1994, p. 227f). Earlier in the book Foucault notes that the Panopticon is a "mechanism of power reduced to its ideal form" and writes that it is "polyvalent in its application" (1994, p. 205).