Free Speech and Media Law

Free Speech and Media Law

International and Comparative Aspects Paweł Jabłoński

Maciej Pichlak

Introduction:

Free speech in a Connected 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. In our 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

Three levels of analysis

 legal level

 sociological level

 philosophical level

Philosophical level:

selected reading

 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.

„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

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 Eric Barendt

 Argument from truth

 Argument from self-fulfilment

 Argument from democracy

 Argument from suspicion

Four types of arguments

according to Wojciech Sadurski

 Search for truth

 Individual autonomy

 Democracy and self-government

 Tolerance

Argument from truth

 Argument based on the importance of open discussion to revealing the truth

 Truth as a goal and truth as a means

 Absolute and relativistic positions

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.

 The paradox of under-protection (of truth) and over-protection (of false)

 A matter of politics, not truth? (The decision about the scope of

protection is based upon political,

and not epistemic premises).

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 self- fulfilment

 Free speech is an integral aspect of

each individual’s right to self-

development and fulfilment

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;

 It does not allow to limit the freedom of

expression, as long as the latter serves to self

fulfillment.

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

Argument from democracy and 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 democracy and 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 expression serves here to teach us tolerance towards a variety of existing opinions.

Objection:

Are there any limits of tolerance? Should we practice tolerance for intolerance (e.g.

to hate speech)?