“As an American who was born in South Korea, and someone who was physically abused because of anti-government views or activities, … I am looking at freedom of expression as a real-life issue rather than as an academic exercise.”

KYU HO YOUM is Professor and Jonathan Marshall First Amendment Chair at the University of Oregon’s School of Journalism and Communication. He was installed as the 94th president of the Association for Education in Journalism and Mass Communication in August 2012.

Globalising the values of the US First Amendment

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In the field of media law, the United States is very much an exceptional case. The First Amendment of the US Constitution protects freedom of speech and of the press to a degree that most other countries—including even other Western democracies— find extreme. Kyu Ho Youm is an Asian-born First Amendment scholar who feels passionately for this American experiment, but also believes that the United States can learn from legal developments elsewhere. As president of the US-based Association for Education in Journalism and Mass Communication, Kyu has been trying to internationalise the outlook of American media scholarship, even as he speaks out in Asia about the value of American-style freedoms. Media Asia editor Cherian George interviewed him recently.

CHERIAN GEORGE:

Let me ask about your plans to internationalise AEJMC. Many academic associations have ambitions of being international but often it stops at mere ambition. Do you think AEJMC will be able to do any better?

Kyu ho youm:

We have been doing this kind of thing for many years. The fundamental question is whether we have been really doing something to make our organisation more relevant globally, not only member-wise but also structurally—and also when it comes to perception. When compared with other organisations like ICA (the International Communication Association), we have a perception problem simply because some people think AEJMC is ‘American’. ‘A’ is for ‘Association’ rather than ‘American’ but this is the kind of perception that we have to deal with.

Globalisation is a mandate rather than a choice for all of us. All the organisations are more or less transforming themselves. The United States is no longer living in an American Globalising the values of the US First Amendment twenty-first century. We are living in the Asian twenty-first century. Now, as the president of AEJMC, I want to see action rather than just talking. We have a 15-member global task force and they are in the process of preparing specific recommendations.

We have a lot of people outside the United States who are very interested and I would like to let them know that we want to embrace them. We are also asking them to get involved not only as paper presenters or attendees but also in leadership positions. So the global task force is looking at everything.

CG:

One thing that makes globalisation more difficult is differences in publishing cultures and differences in institutional cultures between countries. The United States has a certain academic culture that does things differently from other countries. Do you see that as a problem?

KHY:

That is an excellent point. What we are doing in the United States may not be universally accepted. When we talk about some kinds of academic universality, like scholarly rigour, they should be advocated very seriously. But when it comes to the procedure, it should not always be imposed on the basis of American standards. Whether it’s the referencing systems, indexing systems, tenure systems, is there only one way to evaluate scholars? Of course there are variations among institutions, and among institutional priorities. I know of journalism and mass communication programmes in China, in Korea or in Egypt that are wanting to explore whether they can apply for accreditation on the basis of American systems. It is fascinating. We have to look at cultural differences, but when it comes to some kind of scholarly rigour and professionalism, we should not hesitate to advocate.

CG:

As a First Amendment scholar, where would you place academic freedom? Is this something that should be universal, or seen as a Western imposition that doesn’t respect cultural differences? How important is it to champion academic freedom around the world?

KHY:

Academic freedom should be protected. Especially because academic freedom is not just necessary for individual scholars. Eventually, it is for its societal value. It is not a privilege for scholars; it is a right for society as a whole. If there is a doubt of whether academic freedom should or not should not be protected, it should be given the benefit of doubt. Eventually, that kind of benefit of doubt will benefit society.

That’s why, in United States, when judges are asked to look at academic freedom, they are trying to give the benefit of doubt to academic freedom.

CG:

Tell us about your personal journey. You are not American by birth but now you are not just a scholar of the First Amendment but also true believer. How did that come about, having grown up in a non-democratic society?

KHY:

Maybe it is because of my background as an American who was born in South Korea, and someone who was physically abused because of some kind of anti-government views or activities, I have a real-person perspective. I am looking at freedom of expression as a real-life issue rather than as an academic exercise. Therefore, when some people say that freedom of expression is being abused and that’s why it should be restricted or suppressed, I usually don’t buy that kind of argument.

To people who say that sometimes too much freedom is destructive to society, I say that there is no such thing as too much freedom. Of course, we usually learn a lot from our own self-correcting mechanism. And the self-correcting mechanism is possible only when there is more freedom rather than less freedom.

CG:

The freedom to make mistakes and learn from those mistakes?

KHY:

Yes. Think about South Korea and the United States. No other country has Microsoft, Facebook and Yahoo!. And South Korea is enjoying the ‘Korean Wave’. South Korea did not have freedom of expression in 1980s and 1970s. But because of its thriving democracy, South Korea is enjoying a lot more of freedom of expression, freedom of art. That is why South Korea now has Psy. South Korea has extraordinary art blossoming, thanks to freedom of expression. Some people say that when countries have a lot of money they can catch up with the United States very soon. I doubt that China can catch up with United States in terms of entrepreneurial spirit.

So, my real-life first-person experience as a Korean before going to the United States for graduate studies has definitely informed my understanding of freedom of expression, not only as a constitutional right in the United States but as a human right.

CG:

Freedom of expression is recognised as a universal right but the First Amendment of the US Constitution is a particular version of that right. Do you think the First Amendment in its specifics is universally applicable, or is it particularly American?

KHY:

In some areas, some people say that the First Amendment is uniquely American. But in some other areas, the First Amendment is less protective of freedom of speech or freedom of the press. Let me explain. When we talk about the Universal Declaration of Human Rights, it was very much influenced by the First Amendment. Eleanor Roosevelt was directly involved in the United Nations’ Universal Declaration of Human Rights. Article 19 is essentially related to the freedom of expression as a human right, even though there is a qualification to freedom of expression. So there is a lot more interaction and a lot more commonality between freedom of expression in the First Amendment and in Article 19 of the Universal Declaration of Human Rights. But in the past 20 years or so, some people say the First Amendment is less relevant as compared with what is going on outside the United States.

Maybe when we talk about a literal application of the First Amendment, that is not really visible or demonstrable, but when it comes to the inspirational value of the First Amendment, there is no question about it. The First Amendment is more like an experiment, giving Americans the opportunity to do this or that. So I say that the United States is kind of a laboratory of freedom of expression for the rest of the world.

CG:

You said that in some areas the First Amendment is less protective, lagging behind international human-rights laws. Can you elaborate?

KHY:

When you talk about freedom of the press separately from freedom of speech, freedom of the press is given more protection by international law. A specific case in point: When we talk about journalists’ privilege to protect confidential sources, in the United States under the First Amendment there is no constitutional right for reporters to protect their confidential sources. But in the United Kingdom and several other countries, and especially in international law, freedom of the press is interpreted to recognise reporters’ privilege to protect confidential sources.

In the United States, freedom of the press is recognised rarely as an institutional concept even though we say freedom of the press is recognised as the fourth estate, the fourth branch outside of the three branches of government. But in other countries in Europe they recognise freedom of the press more as an institutional concept—very important. If we recognise the institutional concept, journalists are likely to be more protected as compared with what the US constitution does— very significant.

Also, what about access to court proceedings? In the United States, broadcasters are not allowed into the federal courthouse. But in Europe, in international courts—the International Criminal Tribunal for the Former Yugoslavia, International Court of Justice in the Hague, or the Supreme Court of the United Kingdom or the Supreme Court in Canada, the Supreme Court of Brazil—they are opening proceedings for TV and radio broadcasts. In the case of South Korea, the Supreme Court opened its proceedings to broadcasters in March. I sometimes say judges should be exposed to what is going on in the world—outside the United States—to develop a reverse perspective. If you want to know more critically about yourself, you have to talk to other people.

CG:

What about media scholars looking at the evolution of these laws and norms? What are some of the areas you hope media law scholars in Asia would pursue?

KHY:

I would like to see more books and journal articles about media law in Asia. More interesting cases are coming out of the constitutional court in South Korea.

CG:

This was the court that rejected real-name verification?

KHY:

Yes, the real-name verification requirement on the Internet— a very significant development. Media law should be looked at as a nice way to push for more open systems. I am talking about the rule of law. One of the most important elements of the rule of law is transparency; and rule of law has lots to do with checks and balances. And when we talk about checks and balances, we talk about the media’s role.

Media law for whatever reason has not been given a lot of attention in Asian countries. Of course, I have to acknowledge that it is a rather recent phenomenon in the United States. Media law as an important curricular element in the United States, started more or less in the late 1970s. We are talking about less than 40 years. This year, at the AEJMC Convention, the law and policy division will celebrate its fortieth anniversary. It’s not really a long history.

In Asia, AMIC has published several mass communication law books. These kind of books are very important. I hope there will be more books published. In Hong Kong, Doreen Weisenhaus just revised her book on Hong Kong media law. Some people in Hong Kong are working on PRC media law. In Singapore, Ang Peng Hwa and Kevin Tan are working on a book on Singapore media law.

CG:

Comparative law would be important as well?

KHY:

Yes, but we need individual country law first. You cannot do comparative law without primary source books first. When I started writing research articles about Asian law in general and about Korean law in particular in the mid-1970s, I still remember a rejection letter basically saying that our audience is not interested in your topic. I was so depressed and dismayed. If your audience is not interested, this is a great opportunity to educate them!

CG:

But you think things have changed?

KHY:

No question. Now they are asking me to contribute papers. In the last 15 years Asian law has been drawing a lot of attention. I am talking about a lot of books on international media law gaining importance because American publishers and law practitioners know the value of providing critical and comprehensive media law and freedom of expression books and journals. These are very relevant to the globalisation of American law.

CG:

My final question has got to do with the NSA case and before that the Wikileaks scandal. There seems to be a pattern here on the days of secrecy. What do you think the research agenda should be in the post-Wikileaks world?

KHY:

No question that Wikileaks or the NSA leaks or whistleblowing is quite important. That is why we—American media law scholars and practising journalists—are talking a lot about why we need a federal shield law. When a reporter is reporting something based on information from a confidential source, and if the disclosure of that information is a violation of the law, the government wants to know who was in violation. We don’t have a federal shield law, which is embarrassing.

Whistleblowers have some kind of public interest in mind. We need more whistleblowers now than ever because since 9/11 more information is being classified than ever. When we talk about separation of powers and transparency, we have less transparency when it comes to the public’s right to know. We don’t know anything about what the Foreign Intelligence Surveillance Court is doing. They almost never release their court opinions. That is ridiculous. If we don’t know what the court is doing, how we can say whether it is complying with or violating the law?

President Obama said we are transparent about the NSA, but nobody knows what is going on. The important agenda for media scholars or journalism scholars is that we have to do a lot more investigative reporting. We need to encourage and inculcate in students the value of investigative journalism. We need more people wanting to change the status quo. Now I am worried about investigative journalists, because the media are rebalancing their priorities.

National security is really important, but whenever we have governments saying that national security is on the line, we must always challenge them on whether they are really serious about national security or their own political security. Usually they are talking about their political security rather than national security.

ORIGINALLY PUBLISHED IN MEDIA ASIA AS

George, Cherian (2013). “Globalising the values ofthe US First Amendment”, Interview with Kyu Ho Youm, Media Asia 40 (3): pp. 204-210

PHOTO BY CHERIAN GEORGE