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Extreme Speech and the Democratic Functions of the Mass Media

Jacob Rowbottom

in Extreme Speech and Democracy

This chapter discusses the democratic justification for media freedom. The approach taken towards the media in relation to extreme speech is distinguished from that taken towards the individual. The ... More

This chapter discusses the democratic justification for media freedom. The approach taken towards the media in relation to extreme speech is distinguished from that taken towards the individual. The media may require some protection to pursue its watchdog function when reporting speech that is illegal when advocated by an individual. However, some restraints may be imposed on the media in relation to extreme speech that is legal when spoken by a citizen. This chapter has approached the issue from one particular angle: the justification of media freedom by reference to its democratic functions and how this may permit some regulations that enhance those goals.Less

Freedom of Information: A Global Perspective

Sudhir Naib

in The Right to Information Act 2005: A Handbook

This chapter summarizes the development, the growth, and the present trend in the freedom of information (FOI) movement and the general applicability of this doctrine within a global context. It ... More

This chapter summarizes the development, the growth, and the present trend in the freedom of information (FOI) movement and the general applicability of this doctrine within a global context. It begins by looking at the historical evolution of FOI, starting from the 1766 Swedish Freedom of the Press Act. It shows a notable increase in realising of the importance of information access, not only as a human right, but also as an important right for the promotion of good governance and the fight against corruption. The discussion shows that no less than 70 countries have implemented the Freedom of Information Act. The chapter also looks at the efforts of various international bodies for the implementation of FOI laws. A comparative study of FOI in five countries — India, United States, United Kingdom, Canada, and South Africa — is included.Less

Journalism and History in ‘An Age of Mysteries and Paradoxes’ 1

Maximillian E. Novak

in Daniel Defoe: Master of Fictions: His Life and Works

Daniel Defoe did not publish many pamphlets during the years 1708 and 1709. Toward the end of 1709, Defoe devoted a number of issues to concepts of freedom of the press and to a new bill concerning ... More

Daniel Defoe did not publish many pamphlets during the years 1708 and 1709. Toward the end of 1709, Defoe devoted a number of issues to concepts of freedom of the press and to a new bill concerning the rights of authors which was going through Parliament. His chief job while in Scotland was defending the Union, particularly against charges in England that the Church of Scotland was persecuting the Episcopalian ministers in Scotland. He regarded these charges as inspired by the Jacobites and launched an attack upon James Greensheils, whom Defoe thought had not been properly ordained and had been thus rightfully prevented from preaching by the Church of Scotland. In some ways the narrative method of The History of the Union, with its glances backward, its dramatic plot, its focus on details and vivid scenes, and its repetitions, bore considerable resemblance to the kind of fiction Defoe would eventually write.Less

The ‘Unvirtuous Atheist’

Jonathan I. Israel

in Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man 1670-1752

This chapter focuses on physician-philosopher, Julien Offray de La Mettrie, who was involved in a remarkable and prolonged controversy affecting the course of the Radical Enlightenment in the ... More

This chapter focuses on physician-philosopher, Julien Offray de La Mettrie, who was involved in a remarkable and prolonged controversy affecting the course of the Radical Enlightenment in the mid-1740s. This philosophical but also rather public affair not only greatly scandalized respectable opinion but called into question the fundamental values and meaning of radical thought, and the relationship of the radical fringe to existing society, in a way which had far-reaching implications for the future and also highlighted the peculiarities of established methods of intellectual censorship, intensifying the long-standing controversy over toleration and freedom of the press. Most importantly, it caused a permanent and complete rupture between La Mettrie and the main body of radical philosophes.Less

From the Law of the Ruler to the Rule of Law

Mhamed Malki

in Arab Human Development in the Twenty-first Century: The Primacy of Empowerment

Viewed through the lens of the rule of law, which originated and evolved within European culture, the condition in Arab states is confounding. These states are not lacking in laws or institutions, ... More

Viewed through the lens of the rule of law, which originated and evolved within European culture, the condition in Arab states is confounding. These states are not lacking in laws or institutions, and their accession to international human rights conventions has increased in recent decades. Yet these countries remain far from the logic and culture of the rule of law. The rule of law requires more than a constitution and a set of formal rules. In the absence of a conducive environment, achieving these conditions has proven difficult. Concepts such as the state, power, political culture, and awareness of the law and human rights must be reconsidered in order to explain the marked resistance to the rule of law in Arab countries. The rule of law should empower citizens and encourage structural reforms. There are no grounds for accepting the notion of an “Arab exception” that would regard countries in the region as incapable of positive change. Change is possible in Arab states under the proper conditions. The events of the Arab Spring—despite setbacks—confirmed this view, proving the importance of the rule of law in changing the workings of the state and the performance of its institutions.Less

Liberty with All Its Risks

in Between Justice and Politics: The Ligue des Droits de l'Homme, 1898-1945

The Ligue des droits de l'homme (League of the Rights of Man) leaned towards the Left for its commitment to civil liberties, which was evident in the Dreyfus affair that brought the League to its ... More

The Ligue des droits de l'homme (League of the Rights of Man) leaned towards the Left for its commitment to civil liberties, which was evident in the Dreyfus affair that brought the League to its existence. In reality, the League realized that it was difficult to reconcile its stand on civil liberties with its more general political goals. Based on its doctrine, politics should give way to principles. Throughout its existence, however, the League also had to deal with conflicts between the policies that must be dictated by liberal and civil libertarian theory and the more immediate political consequences of such policies. The League's dilemma in trying to balance its simultaneous commitment to civil liberties and left-wing politics was illustrated by the debates in France over freedom of the press, women's suffrage, and freedom of association for religious congregations.Less

John Milton, Roger Williams, and Limits of Toleration

Thomas N. Corns

in Milton and Toleration

This chapter begins with an account of the apparent contradictions between the high principles asserted in Areopagitica and the more circumscribed practical proposals it contains. It considers a ... More

This chapter begins with an account of the apparent contradictions between the high principles asserted in Areopagitica and the more circumscribed practical proposals it contains. It considers a range of critical responses to the difficulties these pose. It contrasts Milton's version of tolerationism with the more expansive and unconstrained model propounded by Roger Williams. It relates Williams's views to his experience of the repressiveness of the New England version of non-separating congregationalism, and suggests that Milton's apparent difficulties reflect his own uncertainties about the immediately current controversies within English Puritanism, which would only be resolved as he became more certain about the intractable hostility of presbyterian orthodoxy to heterodox thinkers like himself.Less

Freedom of speech in England and the anglophone world, 1500–1850

Jason Peacey, Robert G. Ingram, and Alex W. Barber

in Freedom of speech, 1500-1850

Amid considerable debate within modern societies about whether or not there ought to be limits to freedom of speech, this introductory chapter argues that historical perspectives have been all too ... More

Amid considerable debate within modern societies about whether or not there ought to be limits to freedom of speech, this introductory chapter argues that historical perspectives have been all too lacking, and all too simplistic. This chapter sets the book in its modern context – in terms of the challenges that have emerged to Western liberalism as a result of religious pluralism and the challenge of hate speech – and highlights the rather simplistic ways in which freedom of speech has conventionally been anchored in ideas and developments that emerged in early modern Britain. It surveys the historiographical debates that have seen this ‘Whiggish’ narrative subjected to critical scrutiny, and sets up the volume by demonstrating both continuity and change across the early modern world. This means recognising the centrality of religious issues as well as secular concerns, and the complex ways in which contemporaries grappled with the theory and practice of freedom of speech and freedom of the press. It means acknowledging the complex relationship that existed between regulation, restraint and liberty, and the dynamic interplay that can be observed between rights and duties, truth and error, genre and audience.Less

The Origins of the First Amendment and the Question of Original Meaning

in No Law: Intellectual Property in the Image of an Absolute First Amendment

This chapter demonstrates that the argument that the First Amendment had a clear, determinate original meaning, understood or assumed to be embedded in the words “the freedom of speech, [and] of the ... More

This chapter demonstrates that the argument that the First Amendment had a clear, determinate original meaning, understood or assumed to be embedded in the words “the freedom of speech, [and] of the press,” is historically indefensible. Neither the interpretive conventions of founding-era lawyers, nor evidence about the actual views of free expression of founders, supports the claim that the First Amendment's original meaning was identical to Blackstone's no-prior-restraint definition of a free press (or any other preexisting) definition.Less

* ‘Disgusted, Buckingham Palace…’. Divorce, Indecency and the Press, 1926

STEPHEN CRETNEY

in Law, Law Reform and the Family

The bitterness, distress, and humiliation so often associated with divorce was not entirely attributable to the substantive law. Press publicity—often perhaps just the fear of publicity—was ... More

The bitterness, distress, and humiliation so often associated with divorce was not entirely attributable to the substantive law. Press publicity—often perhaps just the fear of publicity—was distressing; whilst the adversarial tradition of court proceedings in which one party had to prove the guilt of the other made matters worse for husbands and wives sucked into litigation. This chapter deals with the circumstances which led to statutory restrictions being put on press reporting of court cases dealing with divorce. It is clear that the prohibition on publication of indecent matter added little to the law. Secondly, although the Judicial Proceedings (Regulation of Reports) Act 1926—one of the rare examples of peace-time legislation specifically restricting the freedom of the press to publish material lawfully in a reporter's possession—prevented the daily press from giving detailed verbatim accounts of sensational divorce cases, the direct effect of the restrictions on reporting divorce cases was not significant; and the press proved well able to make copy, even in undefended cases.Less

Debating censorship: liberty and press control in the 1640s

Randy Robertson

in Texts and readers in the Age of Marvell

Scholars have long debated the extent and efficacy of English censorship in the 1640s. Drawing on publication and censorship data, this chapter argues that the infamous 1643 Licensing Ordinance ... More

Scholars have long debated the extent and efficacy of English censorship in the 1640s. Drawing on publication and censorship data, this chapter argues that the infamous 1643 Licensing Ordinance proved more effective than many scholars have allowed. While writers, printers, and publishers enjoyed greater liberty to produce and circulate polemics in the 1640s, the measures adopted by Parliament and the Council of State limited the freedom of the press. Yet something changed fundamentally during this decade of civil war: at moments in the 1640s, the government lost control not just of the presses but of the discourse surrounding censorship. By examining the contests that arose over censorship, culminating in a discussion of John Lilburne’s treason trial, this chapter traces the vicissitudes of censorship in the 1640s and registers the discursive changes in debates about press freedom.Less

Seeing Justice Done

in The Trial in American Life

The right to a fair public trial, the right to freedom of speech, and the right to freedom of the press are fundamental coordinates in a free society, but they are ranged on a collision course over ... More

The right to a fair public trial, the right to freedom of speech, and the right to freedom of the press are fundamental coordinates in a free society, but they are ranged on a collision course over publicity in today's courtrooms. Technical innovation has turned mere tensions between the law and the press into a battleground of uncertain dimensions. One of the most dominant features of postmodernity in American culture involves the continuous bombardment of sound, image, and print from a surfeit of sources, mediums, and directions. In 1991, Steven Brill generated the Courtroom Television Network, paving the way for the use of television cameras in courtroom trials. Is it possible to ensure responsible trial coverage through postmodern media techniques without muzzling either free speech or freedom of the press? According to the historian Frederic Maitland, “Justice must assume a picturesque garb or she will not be seen.”.Less

Muzzling the Press: When Does the Law Justify Reporting Restrictions? Contempt Cases Against Journalists at the ICTY and Beyond

Audrey Fino and Sandra Sahyouni

in Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach

Chapter 16 deals with contempt cases against journalists. Restrictions on freedom of the press have been striking at international criminal tribunals, where violations of protective measures granted ... More

Chapter 16 deals with contempt cases against journalists. Restrictions on freedom of the press have been striking at international criminal tribunals, where violations of protective measures granted to, for example, witnesses have led to several landmark yet controversial prosecutions of journalists for contempt of court. This chapter examines these practices from a human rights law perspective, as part of the recognized exceptions to the principle of public trials. In doing so, it reviews the law and jurisprudence of international and hybrid tribunals, including the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL), and the International Criminal Court (ICC). In addition, it surveys contempt of court, offences against the administration of justice, and the law on reporting restrictions in a number of common law and civil law domestic jurisdictions. It concludes that the right to freedom of the press in the context of international criminal trials is not absolute, and that limits ordered by international tribunals, despite the polemics they may cause, are actually fully in line with both human rights law and domestic legal trends.Less

News in the Age of Revolution

Joseph M. Adelman and Victoria E. M. Gardner

in Making News: The Political Economy of Journalism in Britain and America from the Glorious Revolution to the Internet

By the 1780s, newspapers had become the dominant news medium in Britain and the United States. Press regulation was very different in the two countries. Whereas successive British governments tried ... More

By the 1780s, newspapers had become the dominant news medium in Britain and the United States. Press regulation was very different in the two countries. Whereas successive British governments tried to limit access to news to the wealthy and middling sorts, public figures in the United States endorsed press freedom—the idea that citizens had a right to access public information—and the generous newspaper subsidies codified in the Post Office Act (1792). These divergent government regulations had unexpected consequences. In Britain, high barriers to entry permitted certain journalists to proclaim their editorial independence, since their profits from advertising far exceeded the perquisites of politicians. In the United States, barriers to entry were so low that newspapers flooded the market. Unable to rely on advertising for support, many journalists found it necessary to endorse the partisan causes of politicians upon whose largesse they relied.Less

To Speak or Not to Speak: Freedom of Expression

O. Chinnappa Reddy

in The Court and the Constitution of India: Summit and Shallows

Freedom of expression is one of the most cherished and valuable rights guaranteed by the Constitution of India. During the discussion in the Constituent Assembly, B. N. Rau and B. R. Ambedkar thought ... More

Freedom of expression is one of the most cherished and valuable rights guaranteed by the Constitution of India. During the discussion in the Constituent Assembly, B. N. Rau and B. R. Ambedkar thought that freedom of the press was a part of the freedom of expression and therefore there was no need for it to be mentioned separately. The earliest of cases involving freedom of expression under Article 19 (i) (a) of the Constitution was the famous Crossroads case, which necessitated an amendment of the Constitution, which further excepted from the right to freedom of speech and freedom of expression, reasonable restrictions in the interest of friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence. This chapter discusses censorship during the course of internal emergency proclaimed by Indira Gandhi in 1975, as well as Supreme Court rulings concerning the right to privacy, tolerance of other beliefs, film censorship, and obscenity.Less

“I had such a Thirst for Knowledge”: Franklin’s Boston Youth

Carla J. Mulford

in Benjamin Franklin and the Ends of Empire

This chapter examines Franklin’s reading and writing during his youth and discusses several of the tracts Franklin worked on in his brother’s print shop. Franklin came to admire early modern ... More

This chapter examines Franklin’s reading and writing during his youth and discusses several of the tracts Franklin worked on in his brother’s print shop. Franklin came to admire early modern liberalism by reading works by John Trenchard and Thomas Gordon, who together wrote “Cato’s Letters” for the London press, along with writings by John Locke, John Milton, Algernon Sidney, Daniel Defoe, and many others. Working in his brother’s print shop, Franklin learned about Boston’s economic matters and started developing his own ideas about how to stimulate the economy of Boston. When his brother was incarcerated for printing criticisms of those in government, Franklin printed materials related to freedom of speech and freedom of the press. By examining Franklin’s readings and writings during his youthful apprenticeship, the chapter accounts for his earliest ideas about politics, society, and the role of government in individuals’ lives.Less

Foreshadowings: International News Service v. Associated Press

in No Law: Intellectual Property in the Image of an Absolute First Amendment

This chapter examines the judicial opinions in International News Service v. Associated Press. The case suggested, as no other case before it had, how protean interests arising in the course of ... More

This chapter examines the judicial opinions in International News Service v. Associated Press. The case suggested, as no other case before it had, how protean interests arising in the course of commerce in products of the intellect, if left unchecked, can conflict with still more important interests touching upon freedom of speech and press. The challenge then was to imagine the terms upon which these interests could coexist, taking into account the paramount place the First Amendment presumably must hold in any reconciliation that might follow. The challenge ultimately would be to imagine a First Amendment capable of constraining intellectual property without destroying it.Less