Free Speech and Media Law

International and ComparativeAspects Paweł Jabłoński Maciej Pichlak Free Speech and Media Law

Three levels of analysis • legallevel • sociologicallevel • philosophicallevel

Legal level • What are the international legal acts relating to freedom of expression? • What are the similarities and differences between the protection of freedom of speech in different legal orders? • What are the most famous or most important court judgments on the issue of freedom of expression?

Sociologicallevel • Whatis the actuallevel of protection of the freedom of speech in variouscountries? • Whatare the most relevantcontroversiesaboutit and cases of itsabuse? • Why is the problem of freedom of expression so important to modern societies? • Why aresuch phenomena as technical progress, globalization, or social differen-tiationimportant for freedom of expression?

Philosophicallevel • Which philosophers are important to the issue of freedom of speech? • What types of arguments are there for freedom of speech? • What kinds of reasons are there for restricting this freedom? • Is speaking an action? • Whatdoesitmean to be free? • Whatis the relations betweenthe freedom of speech and democracy?

Philosophicallevel • John Austin, How to do Things with Words? • Paul Ricoeur, Oneself as Another, The Course of Recognition. • Judith Butler, Excitable Speech: A politics of the Performative.

The freedom of speech in contemporaryworld We are all neighbours now. There are morephones than there are human beings and closetohalf of humankind has access tothe Internet.In ourcities,werubshoulderswithstrangersfromeverycountry, culture andfaith.Theworldis notaglobalvillagebut a globalcity,a virtual cosmopolis.Mostof us can also be publishers now. We can post ourthoughts andphotosonline,whereintheoryany one of billions ofotherpeoplemightencounter them. Neverinhumanhistorywastheresuch a chanceforfreedomof expressionas this.Andneverhave theevilsofunlimitedfreeexpression - death threats,paedophile images,sewage-tides of abuse - flowed so easily across frontiers”. Timothy Garton Ash, Free Speech. Ten Principles for a Connected World https://www.youtube.com/watch?v=w08IWhVsIRs

Lecture 2 „Why Must Speech Be Free?”

Arguments for a Free Speech Principle - introduction • we must distinguish between the defence of freedom of expression as a particular, essential freedom, and the defence of democracy in general • free speech doesn’t entail absolute protection of any manifestation of freedom of expression • two opposing positions on the issue of relationship between philosophical justification and a judicial decision

Four types of arguments according to Eric Barendt • Argument fromtruth • Argument fromself-fulfilment • Argument fromdemocracy • Argumentfromsuspicion)

Argument fromtruth • Argument based on the importance of opendiscussion to the discovery of truth • Truth as a goal and truth as a means • Absolute and relativisticpositions

Argument fromself-fulfilment • Free speech is an integral aspect of each individual’s right to self-development and fulfilment

Argument fromdemocracy • We need freedom of expression because it makes the participation of citizens in democracypossible

Argument fromsuspicion • The most important reason for the protection of freedom of expression is a need to protect the public from government abuse

Ronald Dworkin: Instrumental and constitutive justifications of free speech • The first treatsfree speech instrumentally– “that is, not because people have any intrinsic moral right to say what they wish, but because allowing them to do so, will produce good effects for the rest of us”. (R. Dworkin) • “The second kind of justification of free speech supposes that freedom of speech is valuable, not just in virtue of the consequences it has, but because it is an essential and “constitutive” feature of a just political society, that government treat all it adults members, except those who are incompetent, as responsible moral agents” (R. Dworkin)

Relation between the instrumental and constitutive justifications of free speech • Bothallowexceptions • They are not mutually exclusive • The instrumentaljustificationisbothmorefragile and more limited

Four types of arguments according to Ryszard Sadurski • Search for truth • Individualautonomy • Democracy and self-government • Tolerance

Argument fr0m truth – a problem of opinion „The purpose of seeking the truth supports a distressingly narrow scope for free expression” Opinions, evaluativestatements: how to justifythem? Theycannot be easilyfalsified, but theyalso do not directlycontribute to truth-seeking.

Argument fr0m truth - the "chilling effect" • Protection of solelytruestatementsmaylead to a „chillingeffect” of selfcensorship. • A paradox of underprotection (of truth) and overprotection (of false) • A matter of politics, not truth?

Argument from truth – a scepticinterpretation “According to some writers, the search for truth theory is ultimately based on the Millianargument about uncertainty, and on the virtue of scepticism.” Sadurski’s reply: “The "infallibility" stick is too crude a weapon with which to attack the proponents of restraints on speech. If logically extended, it would undermine not only the legitimacy of restrictions on freedom of speech, but also any restrictions on any human freedom, simpliciter”.

Argument fromautonomy It’slinked to the argument from self-fulfillment. Possibleobjections: • It cannotjustifyallinstances of the excersice of freedom of expression; • It does not allow to distinguishbetweenverbal and nonverbalforms of selffulfillment; • It does not allow to limit the freedom of expression, as long as the latterserves to selffulfillment.

Argument from democracyand self-government The argument of Alexander Meiklejohn: „Democracy requires that citizens be free to receive all information which may affect their choices in the process of collective decision-making and, in particular, in the voting process. After all, the legitimacy of a democratic state is based on the free decisions taken by its citizens regarding all collective action. Consequently, all speech that is related to this collective self-determination by free people must enjoy absolute (or near-absolute) protection.”

Argument from democracyand self-government Objection: “Others have observed that self-government is not necessarily linked to the principle of strong protection of freedom of speech; indeed, one may perhaps argue for restricting free speech on the basis of self-government”.

Argument from tolerance We move a point of argumentation from a speaker to an auditor. Freedom of expressionserveshere to teachustolerancetowards a variety of existingopinions. Objection: Arethereanylimits of tolerance? Should we practicetolerance for intolerance (e.g. to hate speech)?

Free Speech and Media Law