LCR4803-Media Law Study guide Latest Q
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Study Unit 2
Freedom of speech: the underlying philosophy
1 ‘‘Free speech is to the advantage of the individual personally.’’ Critically
discuss the theory on free speech as a basis for self-realization and
individual autonomy,...
LCR4803-Media Law Study guide Latest Q
And A.
MUST READ.
, Study Unit 2
Freedom of speech: the underlying philosophy
1 ‘‘Free speech is to the advantage of the individual personally.’’ Critically
discuss the theory on free speech as a basis for self-realization and
individual autonomy, with reference to this statement. (10)
Because this theory springs from the classical theory on truth, the discovery of truth
is also important in this case. However, according to Meiklejohn (1948:88–89), truth
is not our deepest need. Far more essential, if men are to be their own rulers, is the
demand that whatever truth may become available shall be placed at the disposal
of all the citizens of the community. The First Amendment is not, primarily, a device
for the winning of new truth, though that is very important. It is a device for the
sharing of whatever truth has been won. Its purpose is to give to every voting
member of the body
politic the fullest possible participation in the understanding of those problems with
which the citizens of a self-governing society must deal.
The democracy theory requires that there should be a democracy, that is a system
of regular and open elections, general franchise and majority rule. The fact that this
form of government gives the population the right to be wrong is very important.
Free speech is an indispensable component of such a system for two reasons:
(1) The voters should receive information freely to enable them to participate in an
intelligent decision-making process. Voters cannot vote intelligently without being
fully informed.
Therefore the refusal to make information available is just as serious an
infringement of the community’s democratic rights as it is to withhold the franchise.
(2) The sovereignty of the people means that government officials become servants
and not rulers. Leaders are in the employment of the nation and free
communication gives the nation a way of making its wishes known to the
government of the day. If the conduct of government officials can be criticised, they
can be called to account.
In accordance with the above, it is evident that a government which is also censor
creates an anomaly. The maxim of natural justice, nemo debet esse iudex in sua
propria causa (no one is fit to be the judge in his own cause) applies directly in this
case. When speech is regulated in positive law, it is often precisely the problem of
whether the government should be allowed to determine what should be
suppressed and what not, which comes to the fore. The principle that the voters
alone should have the right to distinguish between truth and falsehood or between
acceptable and unacceptable is part and parcel of the concept of the sovereignty of
the people.
If we acknowledge that voters have the right to be wrong, we have to agree further
that the possibility of making a mistake should not be the basis on which to refuse
people access to information which may influence their views.
This approach at the same time reveals the central weakness in Meiklejohn’s
exposition. If, as a group, the people are sovereign, and if this sovereign unit has all
the unlimited power normally associated with sovereignty, we have to assume that
this sovereign supreme unit will also have the power to restrict freedom of speech
in the same way as it can limit any other freedom. Furthermore, if freedom of
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,speech is necessary to maintain a democracy, how should we explain the fact that
the freedom of speech of an antidemocratic minority must also be acknowledged?
2 What is meant by internal censorship? Does the media make use of this
form of censorship? Discuss briefly. (5)
In this instance, individuals or instances come to a mutual agreement, without any
legal duty being imposed upon them, to submit themselves voluntarily to certain
restrictions on the information they may distribute. Such forms of voluntary
censorship may be found in the case of the Newspaper Association of South Africa
(NA) and the Advertising Standards Authority where members commit themselves
to the acceptance of a specific set of rules or a code of conduct. There are sanctions
for those who transgress these norm systems, such as a pecuniary fine in the case
of the Newspaper Association.
3 ‘‘Freedom of speech is justified on the basis of the advantage it holds for
either the community or the individual.’’ Discuss the validity of this
statement by referring to one of the speech theories which is directed
towards the interests of the community. Also refer to the criticism that
can be levelled against the specific theory. (10)
The Theory of free speech based on participation in
democracy
Background
As the name indicates, a prerequisite for the application of this theory is the
existence of a specific type of state organisation based on democracy, and it cannot
be applied to an autocracy, oligarchy or theocracy. It is probably the most popular
theory of free speech presently in circulation in modern
Western democracies.
Content of the theory
Because this theory springs from the classical theory on truth, the discovery of truth
is also important in this case. However, according to Meiklejohn (1948:88–89), truth
is not our deepest need. Far more essential, if men are to be their own rulers, is the
demand that whatever truth may become available shall be placed at the disposal
of all the citizens of the community. The First Amendment is not, primarily, a device
for the winning of new truth, though that is very important. It is a device for the
sharing of whatever truth has been won. Its purpose is to give to every voting
member of the body politic the fullest possible participation in the understanding of
those problems with which the citizens of a self-governing society must deal.
The democracy theory requires that there should be a democracy, that is a system
of regular and open elections, general franchise and majority rule. The fact that this
form of government gives the population the right to be wrong is very important.
Free speech is an indispensable component of such a system for two reasons:
(1) The voters should receive information freely to enable them to participate in an
intelligent decision-making process. Voters cannot vote intelligently without being
fully informed. Therefore the refusal to make information available is just as serious
an infringement of the community’s democratic rights as it is to withhold the
franchise.
2|Page
, (2) The sovereignty of the people means that government officials become servants
and not rulers. Leaders are in the employment of the nation and free
communication gives the nation a way of making its wishes known to the
government of the day. If the conduct of government officials can be criticised, they
can be called to account.
Criticism
In accordance with the above, it is evident that a government which is also censor
creates an anomaly. The maxim of natural justice, nemo debet esse iudex in sua
propria causa (no one is fit to be the judge in his own cause) applies directly in this
case. When speech is regulated in positive law, it is often precisely the problem of
whether the government should be allowed to determine what should be
suppressed and what not, which comes to the fore. The principle that the voters
alone should have the right to distinguish between truth and falsehood or between
acceptable and unacceptable is part and parcel of the concept of the sovereignty of
the people.
If we acknowledge that voters have the right to be wrong, we have to agree further
that the possibility of making a mistake should not be the basis on which to refuse
people access to information which may influence their views.
This approach at the same time reveals the central weakness in Meiklejohn’s
exposition. If, as a group, the people are sovereign, and if this sovereign unit has all
the unlimited power normally associated with sovereignty, we have to assume that
this sovereign supreme unit will also have the power to restrict freedom of speech
in the same way as it can limit any other freedom.
Evaluation
In terms of this theory, freedom of speech is valuable because it offers listeners
access to any information that is relevant in the pursuit of franchise competencies.
Furthermore, the emphasis on the right of the listener rather than on the right of the
speaker is one of the most important contributions made by the democracy theory.
Protection is offered to the speaker as well as to the listener, and to the view that is
expressed as well as to the information that is heard.
The complexity of modern communities, however, restricts the area of application of
the democracy argument. As political leaders become chosen leaders rather than
appointed servants, government superstructures will be more inclined to try to
perpetuate their own power rather than to act in the public interest.
In such cases, the freedom to criticise the government and especially the freedom
of the press, offers a necessary measure of control. Together with a separation of
powers in the system of government, they form an integral part of the control
mechanism which should keep unlimited state power in check.
4 Write brief notes on TWO of the following:
(a)three generations of human rights (5)
The first generation of rights (also known as ‘‘blue’’ rights) is the group of rights
that developed first and that constitutes what are regarded as the traditional human
rights. They are aimed especially at political, civil and procedural rights and as is to
be expected, the right to freedom of speech or free expression can be found here.
Most of the rights in this group are usually approached from a negative (freedom
from ...) rather than a positive (right to ...) perspective.
The second generation of rights (the ‘‘red’’ rights) which developed later, were a
response to certain of capitalism’s excesses and the uncritical conception that
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