Free Speech and Media Law
International and Comparative Aspects Paweł Jabłoński
Maciej Pichlak
Three levels of analysis
legal level
sociological level
philosophical level
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?
Sociological level
What is the actual level of protection of the freedom of speech in various countries?
What are the most relevant controversies about it and cases of its abuse?
Why is the problem of freedom of expression so important to modern societies?
Why are such phenomena as technical
progress, globalization, or social differen-
tiation important for freedom of expression?
Philosophical level
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?
What does it mean to be free?
What is the relations between the
freedom of speech and democracy?
Philosophical level
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 contemporary world
We are all neighbours now. There are more phones than there are human beings and close to half of humankind has access to the Internet. Inour cities, we rub shoulders with strangers from every country, culture and faith. The world is not a global village but a global city, a virtual cosmopolis. Most of us can also be publishers now. We can post our thoughts and photos online, where in theory any one of billions of other people might encounter them. Never in human history was there such a chance for freedom of expression as this. And never have the evils of unlimited free expression - 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
„Why Must Speech Be Free?”
Lecture 2
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 from truth
Argument from self-fulfilment
Argument from democracy
Argument from suspicion)
Argument from truth
Argument based on the importance of open discussion to the discovery of truth
Truth as a goal and truth as a means
Absolute and relativistic positions
Argument from self- fulfilment
Free speech is an integral aspect of
each individual’s right to self-
development and fulfilment
Argument from democracy
We need freedom of expression
because it makes the participation of
citizens in democracy possible
Argument from suspicion
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 treats free 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
Both allow exceptions
They are not mutually exclusive
The instrumental justification is both
more fragile and more limited
Four types of arguments
according to Ryszard Sadurski
Search for truth
Individual autonomy
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, evaluative statements: how to justify them?
They cannot be easily falsified, but
they also do not directly contribute to
truth-seeking.
Argument fr0m truth - the
"chilling effect"
Protection of solely true statements may lead to a „chilling effect” of self censorship.
A paradox of underprotection (of truth) and overprotection (of false)
A matter of politics, not truth?
Argument from truth – a sceptic interpretation
“According to some writers, the search for truth theory is ultimately based on the Millian
argument 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 from autonomy
It’s linked to the argument from self-fulfillment.
Possible objections:
It cannot justify all instances of the excersice of freedom of expression;
It does not allow to distinguish between verbal and nonverbal forms of self fulfillment;
