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An Egalitarian Conception of Liberal Rights

Thomas Christiano

in The Constitution of Equality: Democratic Authority and Its Limits

This chapter argues that liberal rights — such as the rights of freedom of conscience, freedom of association, and freedom of speech — are grounded in the fundamental interests of persons and the ... More

This chapter argues that liberal rights — such as the rights of freedom of conscience, freedom of association, and freedom of speech — are grounded in the fundamental interests of persons and the requirement that individuals be treated publicly as equals. The underlying rationale for liberal rights is essentially the same as that for democratic rights — they are grounded in the principle of public equality. The idea that liberal rights are grounded in the principle of public equality has a number of advantages. It captures the fine grained nuance of liberal rights as they are experienced in contemporary liberal societies, and it also captures the strength of liberal rights when they come up against the interests of majorities. The chapter also displays the implications of the book's account for the rule of law, toleration of the intolerant, and responds to a number of possible objections.Less

The Art of Expression

Timothy Macklem

in Independence of Mind

This chapter argues that expression is not merely a matter of representing one's thoughts to the world, for the enterprise of expressing oneself is as much about creation as it is about ... More

This chapter argues that expression is not merely a matter of representing one's thoughts to the world, for the enterprise of expressing oneself is as much about creation as it is about representation. Mediums of expression do not simply convey a person's thoughts to the world; they do a great deal to shape the content of those thoughts. It follows that freedom of expression is not simply the freedom to communicate one's voice to others, but is more fundamentally the freedom to develop a distinctive voice of one's own. The recognition of this fact has significant practical implications, for it moves the arts and other creative forms of expression from the margins of freedom of expression, where they have languished in standard accounts of that freedom, to its core.Less

Freedom of Expression, Belief, and Assembly

Brice Dickson

in The European Convention on Human Rights and the Conflict in Northern Ireland

The law relating to the freedoms protected by Articles 9 to 11 of the European Convention — freedom of speech, belief, assembly, and association — has in Northern Ireland always been similar to that ... More

The law relating to the freedoms protected by Articles 9 to 11 of the European Convention — freedom of speech, belief, assembly, and association — has in Northern Ireland always been similar to that applying in England and Wales. During the years of conflict it has been a key element in a number of important controversies. This chapter looks in turn at broadcasting bans, freedom of expression during electoral and parliamentary processes, freedom of belief claims such as those put forward by people seeking to join the police, and the freedom to march, together with a miscellany of other relatively minor issues. Until 2000, of course, the European Convention was not part of the domestic law of any part of the United Kingdom (nor of Ireland until 2004), so persons or organizations with grievances about their right to freedom of speech, belief, and assembly had to take their complaints to Strasbourg if they wanted Convention standards to be directly applied. This happened rarely, and when it did, applicants tended to discover that this was yet another field in which the enforcement organs of the Convention system were quite content to confer a wide margin of appreciation on States.Less

The Millian Epistemological Argument for Autonomy Rights

William J. Talbott

in Human Rights and Human Well-Being

This chapter applies the Millian epistemology to ground a robust, inalienable right to freedom of expression and to ground the other autonomy rights, as necessary for the process of the social ... More

This chapter applies the Millian epistemology to ground a robust, inalienable right to freedom of expression and to ground the other autonomy rights, as necessary for the process of the social process of the free give-and-take of opinion. The chapter considers a variety of exceptions to freedom of expression, including product advertising and political advertising. He uses the examples of Google and Wikipedia to provide empirical confirmation for Mill’s claims about the social process of the free give-and-take of opinion. He also shows how the Millian case for freedom of propositional expression can be extended to cover nonpropositional expression in art and literature. The chapter shows that the Millian argument does not limit freedom of expression to reasonable views. The chapter argues that the distinction between reasonable and unreasonable comprehensive views, which plays a large role in Rawls’s theory and in contemporary discussions of human rights, cannot support the weight that it is intended to bear. This leads to an extended discussion of intolerant subversive advocacy, in which the chapter argues that neither Habermas’s nor Rawls’s theory can explain why the decision of the U.S. Supreme Court upholding the Smith Act (which made membership in the Communist Party illegal) in Dennis v. U.S. was erroneous. The chapter also explains why Mill’s social process epistemology does not undermine his political philosophy. The author concludes by explaining why the main principle would endorse a human right to freedom of expression.Less

The Prohibition of Propaganda for War in International Human Rights Treaties

Michael G. Kearney

in The Prohibition of Propaganda for War in International Law

This chapter examines the manner in which Article 20(1) of the Covenant has been interpreted and applied. Drawing on the periodic reports of states parties to the Human Rights Committee, and the ... More

This chapter examines the manner in which Article 20(1) of the Covenant has been interpreted and applied. Drawing on the periodic reports of states parties to the Human Rights Committee, and the responses of the Committee members, national legislation is considered. The compatibility of the prohibition with the right to freedom of expression and the responsibility of states for propaganda for war is fully examined. Also discussed in detail are the various reservations to Article 20(1), with the justifications given for these reservations, all but one of which has been entered by a Western state, rejected as being based on narrow political interests rather than legal concerns. Also examined is the relevant jurisprudence of the European and American regional human rights systems.Less

Freedom of Expression as a Human Right

LARRY ALEXANDER

in Protecting Human Rights: Instruments and Institutions

This chapter discusses views regarding freedom of expression. It determines the scope of freedom of expression, and discusses freedom of expression on Track Two. It explains that the Track Two ... More

This chapter discusses views regarding freedom of expression. It determines the scope of freedom of expression, and discusses freedom of expression on Track Two. It explains that the Track Two analysis is a violation of the First Amendment. The chapter also discusses the regulator's purpose in regulating conduct, including within freedom of expression all conduct that is restricted for the purpose of affecting the messages that audiences receive. It investigates the ways in which the messages in content regulations directly cause harm. It provides a brief discussion of Track Three: the government speech and subsidies of approved expression. It presents a footnote on private regulation of speech and freedom of expression, and examines the philosophical foundations of freedom of expression that are liberalism, epistemic abstention, and rule-consequentialism. The chapter adds a topic regarding the governmental fallibility, democracy, and the right to speak the truth.Less

When the State Speaks, What Should It Say?: Democratic Persuasion and the Freedom of Expression

Corey Brettschneider

in When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality

This chapter focuses on democratic persuasion. Although democratic persuasion stresses the importance of an active role for the legitimate state in promoting democratic values, value democracy does ... More

This chapter focuses on democratic persuasion. Although democratic persuasion stresses the importance of an active role for the legitimate state in promoting democratic values, value democracy does not abandon all accounts of neutrality in thinking about freedom of expression. The Supreme Court's doctrine of viewpoint neutrality is appropriate as a standard for limiting state coercion. Viewpoint neutrality means that all viewpoints, regardless of their content, should be protected by freedom of expression, provided they are not direct threats to individuals. However, while viewpoint neutrality is appropriate as a standard for applying the right of free expression to citizens, it is misplaced as a guide to determining the state's own expression and what it should say. The chapter argues that the state should be non-neutral in its persuasive and expressive roles.Less

The Protection of Human Rights

Hiroshi Oda

in Japanese Law

This chapter discusses human rights protection in Japan. Topics covered include the development of human rights law, the Constitution, restrictions on human rights, freedom of expression, access to ... More

This chapter discusses human rights protection in Japan. Topics covered include the development of human rights law, the Constitution, restrictions on human rights, freedom of expression, access to information, equal treatment, freedom of religion, due process of law, rights of suspects and defendants, economic rights, the role of the Supreme Court, and international treaties and human rights.Less

The Media in European and International Human Rights Law

Perry Keller

in European and International Media Law: Liberal Democracy, Trade, and the New Media

Chapter Six sets out, separately, the principles and rules of European and international human rights law that most directly affect the media. The Chapter examines the ECHR Article 10 right to ... More

Chapter Six sets out, separately, the principles and rules of European and international human rights law that most directly affect the media. The Chapter examines the ECHR Article 10 right to freedom of expression, explaining the judicial development of its core purpose of protecting scrutiny and comment on public affairs. It also examines competing ECHR based rights and interests and the use of proportionality analysis to achieve a balance between these and the liberty to publish. The Chapter looks at other Council of Europe treaties and instruments concerning media issues, including regulatory independence, public service media and prescriptive rules protecting state and public interests. Chapter Six then discusses Article 19 of the ICCPR in comparison to Article 10 of the ECHR, including various successes and failures in developing a liberal democratic interpretation of freedom of expression in international law in different venues.Less

Commercial Expression in Canada

Roger A. Shiner

in Freedom of Commercial Expression

Constitutional protection in the full sense (that is, a right whose enforcement may lead to invalidation of legislation) for freedom of expression in Canada is relatively recent compared with that in ... More

Constitutional protection in the full sense (that is, a right whose enforcement may lead to invalidation of legislation) for freedom of expression in Canada is relatively recent compared with that in the United States. Prior to April 1982, the formally written Canadian constitution was essentially the British North America Act of 1867. Protection of fundamental rights and freedoms was left to legislation and the common law, following the United Kingdom tradition. All that changed with the enactment in April 1982 of the Canada Act 1982. There are questions to be asked about whether the Supreme Court of Canada's actual handling of freedom of commercial expression respects jurisprudential constraints implicit in the institutional separation of section 1 from the subsequent sections, including section 2(b), of the Canadian Charter of Rights and Freedoms. This chapter looks at several court cases on commercial expression in Canada, grouped by subject-matter: professional advertising, product advertising, solicitation by prostitutes, newspaper vending box cases, and miscellanea.Less

The Law of Holocaust Denial in Europe

Laurent Pech

in Genocide Denials and the Law

The full implementation of the recently adopted EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (EU FD on racism) will radically ... More

The full implementation of the recently adopted EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (EU FD on racism) will radically alter the legal landscape in Europe. This chapter offers a critical review of the EU FD on racism, arguing that the political necessity of laws punishing genocide denial and the legal need for an EU-wide prohibition may be questioned seriously. It begins by considering why and to what extent national approaches on the question of Holocaust denial have diverged. This review will help determine the national model(s) the drafters of EU FD on racism sought to emulate. It also will prove, on the one hand, that scholars were not entirely right to oppose an American approach to a European model regarding hate speech—if one agrees to include Holocaust denial in this category—and, on the other hand, that even among EU Member States with criminal provisions aimed at punishing Holocaust denial, these provisions have been drafted diversely and interpreted. What is striking, however, is that national courts in militant democracies invariably have upheld the compatibility of Holocaust denial laws with the right to freedom of expression. The chapter argues that the legal reasoning developed by German and French courts is far from being entirely convincing. It further argues that the European Court of Human Rights should have refrained from labeling the Holocaust a clearly established historical fact for which denial constitutes ipso facto an “abuse of right”.Less

Regional Human Rights Bodies

ANDREW CLAPHAM

in Human Rights Obligations of Non-State Actors

This chapter covers the case-law of the regional human rights systems. Key topics include killings by non-state actors, slavery and forced labour, privacy, and freedom of expression and assembly.

The Twisted Road from Prince Albert to Campbell, and Beyond: Towards a Right of Privacy?

Roger Errera

in Tom Bingham and the Transformation of the Law: A Liber Amicorum

This chapter discusses the reconciliation of the right to privacy with the right of free expression. Part one comments on the first stage of the national debate on privacy, from the early 1960s to ... More

This chapter discusses the reconciliation of the right to privacy with the right of free expression. Part one comments on the first stage of the national debate on privacy, from the early 1960s to the late 1980s. Part two relates to the years 1990 to 1993, from the first Calcutt Report to the second one. Part three studies the events that took place after the adoption of the Human Rights Act 1998 and focuses on the new case law relating to the protection of privacy. Part four comments on the present state of English law, then the chapter shows how, in two other European countries — France and Germany — the courts have approached the issue of privacy as a right and finally the chapter offers a few remarks on the evolution of English law.Less

Hearers’ Rights

Roger A. Shiner

in Freedom of Commercial Expression

This chapter explores proposed justifications for the commercial expression doctrine based on the idea that the corporation whose expression is regulated or restricted has a derived autonomy right of ... More

This chapter explores proposed justifications for the commercial expression doctrine based on the idea that the corporation whose expression is regulated or restricted has a derived autonomy right of some kind to constitutional protection for its commercial expression or commercial speech. It argues that any robust doctrine of hearers' rights must be constrained by what is termed the Unnecessary Duplication Principle, which argues that hearers' rights are of no normative value if all they do is justify the invalidation of a restriction on freedom of expression, the invalidation of which would in any case be justified by expressers' rights. It also looks at a number of court cases and discusses freedom of information, prisoners' rights under the First Amendment, the fairness doctrine, and the limited role of hearers' rights.Less

The Media and the Liberal Democratic State

Perry Keller

in European and International Media Law: Liberal Democracy, Trade, and the New Media

Chapter Two examines the foundations of the relationship between the media and the liberal democratic state, breaking it down into three broad perspectives: the liberty to publish free from external ... More

Chapter Two examines the foundations of the relationship between the media and the liberal democratic state, breaking it down into three broad perspectives: the liberty to publish free from external interference, the protection of state interests in security and public order, and lastly the protection of individuals, communities and society at large from the harmful effects of media publication. This Chapter then compares consequential and autonomy based liberal arguments for freedom of expression, underscoring the critical role that democracy has acquired as an argument for greater liberty to publish. Ideas of harm and offence, also grounded in autonomy as well as human dignity, are explored. Chapter Two also looks at positive intervention by the state in media markets for social and cultural purposes. Finally, in considering different constitutional approaches to freedom of expression, the Chapter examines proportionality analysis and its alternatives in liberal democratic media law.Less

Hate Speech, Extreme Speech, and Collective Defamation in French Law

Pascal Mbongo

in Extreme Speech and Democracy

This chapter provides a picture of the French authorities' (Government and judges) interference in the freedom of expression which are justified by the refusal of Hate speech. These interferences ... More

This chapter provides a picture of the French authorities' (Government and judges) interference in the freedom of expression which are justified by the refusal of Hate speech. These interferences appear like mirrors, not only of the French notion of freedom of expression, but also of the relationship that the French state maintains with society. The French notion of freedom of expression has in fact always been relativistic if only because, by constantly establishing a balance between freedom of expression and ‘law and order’, French constitutional texts have never brought about a debate comparable to the American debate relating to the First Amendment's provision that Congress shall make no law abridging freedom of speech. As a matter of fact, the constancy of this balance between freedom of expression and ‘law and order’ tells us something about a certain form of ‘paternalism’ that is particularly characteristic of the French state in its relations with society.Less

Introduction

Dario Milo

in Defamation and Freedom of Speech

This introductory chapter begins with a brief discussion of the main purpose of this book, which is to address the question of whether the civil law of defamation, more particularly in its common law ... More

This introductory chapter begins with a brief discussion of the main purpose of this book, which is to address the question of whether the civil law of defamation, more particularly in its common law manifestation, achieves an optimum constitutional balance between the right to reputation and the right to freedom of expression. It then discusses the horizontality of constitutional provisions in the context of defamation and the broad approach adopted in England, South Africa, Australia, and the USA to the issue of balancing rights in the context of judges developing the common law of defamation. An overview of the subsequent chapters is presented.Less