LCR4803-MEDIA LAW LATEST
NOTES.
1
Freedom of speech: the underlying philosophy
2.1 Background
The ideas of freedom of speech and the pursuit of free speech originated as far back as in ancient Greek civilization. It
was only during the fifteenth and sixteenth centuries, however, that these id...
The ideas of freedom of speech and the pursuit of free speech originated as far back as in ancient Greek civilization. It
was only during the fifteenth and sixteenth centuries, however, that these ideas received renewed attention as
manifestations of freedom of conscience and freedom of religion.
Very soon, however, freedom of speech developed as a separate concept with its own legal content and grew into
what can today be regarded as one of the basic freedoms towards which people strive in their search for self-
realisation and their struggle against suppression by the authorities.
From the outset it should be mentioned that any concept of freedom of speech and/or free speech is often obscured
by the limitations inherent in words and language.
A right is much more complex than the words used to describe it.
‘‘Free speech’’ as a juridical concept has a different content and meaning to that which is normally ascribed to it in
everyday language.
A restricted interpretation like the one used in colloquial language, could lead to the following incorrect assumptions:
(1) The impression could be created that here we are dealing with the freedom to form one’s own judgment
and to express it; in other words, the right to publish (in the legal meaning of the word) or to make known .
Such a viewpoint would negate the equally important counterpart of this right, namely the equivalent freedom —the
right to be informed or to know. The latter right concerns the need of every member of the
community to receive information from every possible source so that he/she can make his or her own value
judgments. Seen in this light, free speech in the form of a free press is not only in the interests of the journalist, but
also the concern of the public.
(2) A second misconception which could arise is that here we are dealing only with those forms of conduct
which are regarded as ‘‘speech’’ in everyday language. Such a view would limit the right in question
unnecessarily. Originally, the spoken word was the most important manifestation of speech, and included the
confirmation of faith, the expression of political views, public and private addresses, and discussions.
With the development of technology, communication media have increased to the extent that at present the exchange
of ideas and views is possible on a much wider front. It can take place via the telephone, telex, television, radio,
gramophone, record, cassette and CD player. The power of free expression is also revealed in written form by means
of letters, pamphlets, tracts, newspapers, manuscripts, the internet and e-mail.
The increase in the distribution of written and printed material by means of mechanical, photographic and electronic
reproduction processes has augmented the need to define and demarcate the concept of freedom of speech more
precisely to enable the individual and the community to determine the ambit of their rights and duties more precisely. It
is generally accepted today that certain symbolic acts, such as displaying a painting or burning a flag, can also
‘‘express’’ certain views and should therefore be regarded as ‘‘speech’’.
(3) There are also activities which in normal parlance are considered to be forms of speech, but which cannot
be included when discussing ‘‘free speech’’. Good examples would be the drawing up of a contract or the
committing of perjury. Therefore there is not an inevitable correlation between conduct which is normally regarded as
speech and conduct which appeals to the principle of ‘‘free speech’’.
1
,Freedom or right?
The principle of free speech flows from the development of human rights in general.
To explain certain terminology, it is necessary to refer briefly to the concept of ‘‘three generations of human rights’’ as
expounded by the French jurist, Karel Vasak.
These three generations were inspired by the three normative themes of the French Revolution, and
consist of:
- the first generation of civil and political rights (liberte´ ),
(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.
- the second generation of economic, social and cultural rights (egalite´ )
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 individual freedom legalised the exploitation of the working class and
colonial populations.
In order to ensure fair participation in the production and distribution of resources, active intervention by the state is
required in this case and not merely a passive permissiveness as in the case of first-generation rights. The accent
here is on the duty of the state rather than on the rights of the subject. This inevitably means that this group of rights is
more difficult to enforce. Some jurists even go so far as to say that these rights do not belong to a bill of human rights
because a government with inadequate resources will have no means at all of fulfilling its duties in this regard.
- the third generation of what is at present known as solidarity rights (fraternite´ ).
As far as the third generation of rights (the ‘‘green’’ rights) is concerned, there is still much uncertainty. They cannot
easily be incorporated into either of the other two generations of rights and include such rights as the right to peace,
the right to self-determination, the right to control of resources, the right to development and the right to a clean
environment.
In what follows, we will therefore first give a brief exposition of three prominent freedom of speech theories.
2
, THE CLASSICAL THEORY ON TRUTH
Background
One of the first theories developed to justify the principle of freedom of speech, and probably the theory with the
greatest support, is the classical theory on truth.
It relies on the presumption that open discussion and the free exchange of ideas are an absolute necessity in
order to determine the true state of affairs and make an accurate evaluation thereof.
Supporters of this theory
Milton
The first comprehensive work based on this supposition was Milton’s Areopagitica which was published in England in
1644. Milton advocated that the free circulation of information would make it possible for the community to determine
the truth and in that way make the correct decisions. According to Milton, truth and falsehood are in constant conflict.
Should the state refrain from intervening in this battle and from thus manipulating the outcome, the truth would
inevitably be victorious.
John Stuart Mill
Two centuries later, John Stuart Mill built on this theory in his work, On Liberty. Although he did not believe that truth
would always leave the arena as victor should it be in conflict with falsehood, he nevertheless attached great value to
free speech because without it, truth would never be able to triumph. He believed that truth is autonomous and
fundamentally good, and therefore any striving towards it would be to the benefit of community development.
2.3.4 The marketplace of ideas
This theory is, to a large extent, based on the accusatorial legal system practised by Anglo-American law courts to
determine the true facts in a dispute. Freedom of speech can accordingly be equated to the process of cross-
examination. Just as the truth of a witness’s testimony can be tested in a court of law by means of cross-examination,
in the same way the freedom to criticise offers an opportunity to test and evaluate the validity of accepted facts and
expressed views.
2.3.5 Summary and criticism
- the disclosure of truth is not always a community’s highest priority. There are many instances where the
values of a legal system may depend on the suppression of the truth because it may be to the disadvantage
of that community. Truth is then made subservient to these other values.
- information is often withheld precisely because it is true. Here we need only think of information on state
security, trade secrets or the fruits of somebody’s labour. A critical question not answered by this theory, is
whether the truth, when placed next to falsehood, will inevitably be chosen above falsehood. In the case of
scientific or academic discussion, the truth is usually the end product of a rational thought process, but in the
case of the general public, various viewpoints are not compared in order to choose what is true above what is
false.
- ideas are not always accepted because of their intrinsic value, but more often because their
presentation and packaging may conceal their true character.
- The media which is all-powerful is also more readily available to well-to-do people who may easily
monopolise the marketplace of ideas.
3
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