Why the Australian DJs should never have made that call to Kate's nurse

Ever since a prank by a pair of Australian DJs revealed Kate Middleton’s pregnancy, and subsequently led to the death of nurse Jacintha Saldanha, there has been widespread condemnation of both the prank and its perpetrators. The hospital, the Royal family, and even the pranksters themselves, Mel Greig and Michael Christian, have assigned the DJs their share of the blame.

Several comments, like this one from CNN contributor Ross Stevenson, cite Australian broadcast regulations which forbid broadcasting the words of an identifiable person without their prior knowledge and consent. Says Stevenson, “Jacintha Saldanha was not aware in advance that her words might be broadcast.” Hence the radio hosts violated the law.

On the other hand, others have argued that blaming the pranksters for nurse Saldanha’s death is simply the wrong way to parse the events.

According to Taylor Marsh, writing for themoderatevoice.com, the DJs “taking blame is not only outrageous, but borderline irresponsible.” Marsh refuses to accept that the radio hosts ought to be blamed for the nurse’s death. The death, believed to be a suicide, ought to be considered an extreme reaction which the pranksters could neither control nor reasonably be expected to predict, according to Marsh.

The CBC’s Dr. Brian Goldman offers a similar argument, that “it would be wrong to rush to judgment for a whole lot of good reasons.” Dr. Goldman’s reasons include the fact that we are not yet certain it was a suicide and that the call took place at 5:30 AM, “a time of day when the overnight staff may be sleep deprived and somewhat inattentive.” Goldman argues that the hospital needs to look at “its own operations and operating culture that contributed to this terrible tragedy.”

Still another line of thinking is seen on Dailykos.com. Here, a writer (who does only goes by 8days2amish) argues that committing suicide over a prank is absurd and, apparently, also selfish.

All of this makes for a lively discussion. Unfortunately, it is also completely misguided. The proper subject here is free expression. Not hospital workplace culture, not the morality of suicide, not Australian broadcast regulations, but free expression.

Freedom of expression is one of our most cherished democratic values. When considering a case like this, we do well to ask what are the implications for our basic commitment to free expression. This is not a test of decency. Rather, it is a test of whether or not we risk trampling one of our most fundamental freedoms in the process of decrying a speech act.

Allow me to fill in a little background.

In his seminal essay On Liberty, J.S. Mill argues that free speech should be generally unrestricted except in the case where a harm is involved. This is what we call Mill’s Harm Principle.

“An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.”

So, in other words, context matters. Expressing the opinion that corn-dealers are responsible for starving the poor may be democratically productive within the context of a town hall, but in another context may amount to inciting murder.

Oliver Wendell Holmes Jr. famously makes a related argument about shouting fire in a crowded theatre. Where speech is visibly both false and dangerous, the speaker must take responsibility for its consequences and is properly subject to sanctions under the law. Since then (1919), the law has changed. But it is the spirit of this quote which I hope to invoke.

To be clear, I'm not asking whether or not this type of thing should be criminalized, but whether we can condemn Greig and Christian for committing a speech act while maintaining a broader commitment to free speech.

I have recently argued that comedians ought not to apologize for their jokes. In particular, I don’t believe that any joke’s offensive content should lead a comedian to self-censorship. Jokes can be offensive. That’s the way humor works. They can’t all be gems.

And on its face, this recent prank looks like a similar situation. Hence, it looks like I’m committed to defending the DJs' right to prank. However, this situation is substantively different from either Lena Dunham’s offensive tweets or those by one-time GEICO spokesman Gilbert Gottfried.

The most obvious difference appears to be the fact of Saldanha’s death, as opposed to the relatively trivial harm of someone getting offended. However, it is wrong to pin the moral status of the prank on its actual outcomes. By that reasoning, the prank would have been morally better if Saldanha had not killed herself (although we don’t, to my knowledge, know that it was suicide yet). In fact, if we want to rely on outcomes for our moral judgment, then we are forced to admit that the prank would have a different moral value if Saldanha had failed in her attempt to end her own life.

Again, I’m just using the hypothetical of suicide for the purposes of argument. I mean no disrespect to the late Saldanha or her family. In fact, it would not make a difference if her death were the result of a heart attack, so long as it was precipitated by the prank. Either way, if we seek our moral judgments from actual outcomes, those judgments are at least partially at the mercy of luck. That seems like the wrong way to do ethics and many philosophers have spilled buckets of ink to make that very point.

We can provide ourselves a much firmer footing by looking at the context of the prank itself. Recall the death of Lady Diana. She was chased into a tunnel by paparazzi where her vehicle crashed and she died. Remember the nude photos of Kate Middleton earlier this year. Years ago, it was Sarah Ferguson. The British Royal Family has a long history of having its privacy invaded by aggressive tabloid journalists and paparazzi. Given this history, one ought to expect that there is a very raw nerve about stuff like this.

As well, King Edward VII Hospital has a very high-end reputation at stake. The future King of England does not bring his wife to any old hospital; he takes her to the best hospital with the strongest reputation for both standard of care and protection of privacy. In short, the stakes are high.

Enter nurse Jacintha Saldanha, who unluckily found herself working the phones (not a nurse’s job) when the call came in. She just happened to be there. It might as easily have been someone else. However, no matter who answered the phone, if the prank was successful, it would put that person at the center of a controversy where some very powerful players had their interests compromised. And who is left holding the bag? Whoever answered the phone.

I would humbly suggest that this is reason enough for Greig and Christian to expect that the prank would very likely result in a demonstrable harm to the duped party. Whoever answered the phone would surely have seen his or her professional reputation destroyed and found him or herself at the center of a media firestorm no ordinary human could be expected to endure. The stakes are just too high. Like shouting “fire” in a crowded theatre, one ought to realize that this is a speech act which places other people in real danger for no justifiable reason.

Sure, there are many questions here. In my mind, the free speech question is one of the only things we can address definitively at this stage of the story. It is incumbent upon a prankster to consider the reasonably foreseeable outcomes before proceeding with a prank. We only need to look at the situation in terms of what was known before the fact and we can see that Greig and Christian could not possibly have considered what they were doing in any thorough sense. That is what makes it reckless.

In the days and weeks to come, I hope that we can cut through the visceral reaction to what is, undeniably, a tragedy. Some bad outcome was easily predictable. Whether the harm was psychological, professional, or even led to a suicide, the fact remains that it was easily predictable. Only by detaching our judgments from the actual outcomes can we come to appreciate how the likelihood of serious harm is sufficient to judge this prank as wrong. It was wrong well before it was tragic.