Contested Words

Legal Restrictions on Freedom of Speech in Liberal Democracies

Ian Cram

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317160298
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

In modern liberal democracies, rights-based judicial intervention in the policy choices of elected bodies has always been controversial. For some, such judicial intervention has trivialized and impoverished democratic politics. For others judges have contributed to a dynamic and healthy dialogue between the different spheres of the constitution, removed from pressures imposed on elected representatives to respond to popular sentiment. This book provides a critical evaluation of ongoing debates surrounding the judicial role in protecting fundamental human rights, focusing in particular on legislative/executive abridgment of a core freedom in western society - namely, liberty of expression. A range of types of expression are considered, including expression related to electoral processes, political expression in general and sexually explicit forms of expression.

1 Current Controversies in Freedom of Expression

DOI: 10.4324/9781315574011-1

Introduction

Under what circumstances, if any, is the state entitled to curb the speech of racists? Should Holocaust denial be made a specific offence or does this invade too far upon cherished notions of liberty of expression? Ought the claims of the producers and consumers of virtual child pornography that they are protected by freedom of expression to be accepted? What about other forms of sexually explicit expression? Are bans on tobacco advertising ever justified? What limits, if any, is the state entitled to place on the election expenditure of relatively wealthy parties or their donors? Should the state do more to facilitate the expression of economically weak groups in order to enrich debate on matters of politics and social affairs? This book is intended as a contribution to some current debates on freedom of expression. It seeks to explore from a comparative constitutional law perspective attempts at line-drawing in modern liberal democracies in these difficult areas. Importantly, the discussion attempts to situate its analysis within a broader context that acknowledges the role played by underlying traditions and currents in political philosophy that frame the treatment of speech problems in constitutional courts. This work hopes to throw light on the fundamental values that inform the interpretation of open-ended constitutional declarations of freedom of expression. Do courts in liberal democracies conceive of expression guarantees as primarily concerned with maintaining the conditions of informed popular sovereignty, as means of promoting democratic accountability over public office holders or, alternatively, are they linked more closely to the idea of individual autonomy, as a necessary mechanism for enabling the intellectual and emotional growth of persons? If the former, how far is the state entitled to go in creating the circumstances for enhanced public discourse and at what cost to individual liberty? Where an emphasis on public discourse is evident, does this mean that state regulation of non-political expression is considered to be relatively unproblematic, with the result that legislative/executive abridgements of commercial expression or sexually explicit expression raise few constitutional issues? Conversely, if we see speech/expression guarantees as more intimately linked to individual autonomy, does this mean that the state is not justified in redressing obvious inequalities in private power that become reflected in distorted or dominant patterns of discourse?

Constitutional protection for freedom of expression is usually accompanied by statements of other fundamental rights and freedoms. I have in mind here those constitutional provisions that proclaim a commitment to equality, dignity and diversity. What relationship, if any, do these guarantees have to freedom of expression? As we will see in Chapter 5, which deals with the regulation of hateful expression, a number of jurisdictions accept that freedom of expression is mediated by countervailing constitutional principles such as equality and dignity. The commitment to equality may, however, simply be cast in negative terms as a formal requirement obliging the state to remain neutral between conflicting viewpoints. That is, the state may not assist the dissemination of opinion with which it is in agreement. More radically, equality can be read in a different way to authorize state intervention between unequal speakers, either to silence some of the expression of the powerful or to enhance the speech of marginalized individuals/groups.

The Crisis of Liberal Democracy, Virtuous Citizenry and Freedom of Expression

According to classical liberal theory, to function effectively, liberal democracies required merely that the appropriate institutional mechanisms were in place (such as bicameral legislatures; checks and balances) and that constitutional doctrines were respected and enforced (separation of powers; the rule of law). Liberal democracies, so the argument went, did not need an especially virtuous citizenry to function effectively. Individuals could in fact pursue their private self-interests without threatening the well-being of the liberal state.¹

¹ Kant, for example, subscribed to the view that the right institutional mechanisms could overcome the private conduct of a ‘race of devils’, Perpetual Peace – First Supplement (1903, Allen & Unwin, London). See further The Federalist Papers Nos. 10–51, where the clash of private interests was also thought beneficial in general terms: J Madison, A Hamilton and J Jay, The Federalist Papers (1987, Penguin Books, London).

A reassessment of this position has occurred, however, within liberal thinking. The pursuit of private well-being is no longer seen to be sufficient and the notion of the individual as a bearer of rights without any reciprocal obligations to society has come under attack. Some have argued that, without the development of certain forms of virtuous conduct, the ability of liberal society to operate successfully will diminish. The example is given of the environment where it is said that the state cannot protect the environment ‘if citizens are unwilling to reduce, reuse and recycle in their consumer choices …’.² In the sphere of electing governments, voter apathy already threatens to undermine the democratic legitimacy of political institutions. In Britain, for example, there has been a steady decline in the numbers of persons voting in general elections. Statistics from the House of Commons Parliamentary Research Services indicates that in 1992 77.7 per cent of those eligible voted. This dropped at the following election in 1997 to 71.4 per cent before crashing in June 2001 to 59.4 per cent.³ In the 2005 general election, this figure rose slightly to 61.3 per cent – a fact attributable in part to the introduction of postal voting, although this produced concerns about fraud and the role of local political parties in distributing ballot papers.⁴ Falling levels of voting are not confined to the UK. Across the Atlantic, US Presidential elections in the 1950s and late 1960s regularly boasted a turnout figure of between 59 and 61 per cent. In the 1970s and up to the mid-1980s this dropped to around 55 per cent. In the 1996 and 2000 contests, the figures fell to 49 per cent and 51.1 per cent respectively.⁵ Federal elections in Canada in 2000 saw the lowest ever figure of just 61 per cent of eligible voters casting a ballot, prompting a research paper from the Centre for Research and Information on Canada entitled Voter Participation in Canada – Is Canadian Democracy in Crisis?⁶ The paper concluded that young Canadians were far less likely to vote than were their parents and grandparents when they were young. Disengagement from or nonengagement with electoral politics is worrying for a number of reasons. Apart from undermining the legitimacy of legislative rule-making, it may be indicative of wider alienation from the community and a retreat into the private spheres of family, career and other personal projects. Moreover, where interest in political matters is shared by relatively few persons, this may induce a belief on the part of those in authority that abuses of power are less likely to attract significant public censure.

² W Kymlicka, Contemporary Political Philosophy – An Introduction (2nd edn, 2002 OUP, Oxford) 285. Other examples include the fields of personal health and personal finances where unchecked irresponsible attitudes, if widespread, may outstrip the ability of the state to provide remedial help. ³ British Electoral Facts 1832–1999 Parliamentary Research Services, House of Commons. ⁴ See further The Electoral Commission, Securing the Vote (2005) available electronically at http://www.electoralcommission.org.uk/files/dms/Securingthevote_17643-12944__E__N__S__W__.pdf. ⁵ There was a rise in 2004 however to 60 per cent. ⁶ (2001, Centre for Research and Information on Canada, Ottawa).

Theorists such as Shklar, Galston and Kymlicka have begun to consider the sorts of virtues which liberal society requires of its citizens or, at least, a significant proportion of those citizens and how, once identified, these may be encouraged. In the context of this book’s concern with freedom of expression, the work of William Galston is worthy of closer study.⁷ His account of liberal virtues identifies among the political virtues needed of citizens in representative democracies the capacity to discern the talent and character of candidates vying for public office and the ability to evaluate the performance of those who have attained office. Galston additionally refers to the virtue of being willing to engage in open public discourse which involves listening and understanding others as well as seeking to persuade others to our point of view. Stephen Macedo, for his part, has stressed the importance of ‘public reasonableness’ in liberal constitutionalism. Alongside toleration, law-bound liberty and a rights-oriented conception of justice, liberal institutions

⁷ Liberal Purposes (1991, CUP, Cambridge), especially Ch. 10.

… provide the settings for ongoing efforts to formalize, clarify, contest, justify, refine, and extend liberal principles … In a liberal regime, criticism of the government is accepted and even encouraged, and liberal citizens expect to be answered with reasons rather than mere force or silence.⁸

⁸ Liberal Virtues (1990, Clarendon Press, Oxford) 40–41.

This more active, ‘talk-centric’ version of liberal democracy with its authority-questioning citizen represents a shift away from ‘vote-centric’ approaches to democracy in which citizens were conceived of as passive and uncritical and whose fixed preferences were translated into support for political parties via the electoral system.⁹ In 1995 Jon Elster was able to write that ‘the idea of deliberative democracy, or decision-making by discussion among free and equal citizens, is having a revival’, a trend he attributed to the work of Jurgen Habermas.¹⁰ Consequently, political scientists have been much occupied with designing mechanisms and procedures to facilitate deliberative decision-making.¹¹ The benefits which are said to accrue from deliberation-enhancing devices include better decision-making (since more persons with informed insights would be able to influence outcomes) and greater societal cohesiveness (fewer persons would feel excluded from the process; also the fact of participation itself might connect citizens to others and encourage empathy with others’ concerns). The most optimistic accounts hold out the hope of greater consensus across key issues confronting the polity. Whether this is a realistic aspiration or not,¹² most can agree that, if properly inclusive, deliberative procedures may result in greater legitimacy for resultant policy choices. Unsurprisingly, these various advantages have united a diverse set of theorists, including liberals, communitarians and feminists, in advocating enhanced structures of deliberative decision-making.

⁹ The terms ‘vote-centric’ and ‘talk-centric’ are to be found in Kymlicka supra. It has been suggested by one US academic that modern democracies may be compared to a public lavatorial exercise in which a bursting electorate manage every few years to relieve themselves in private at the ballot box before continuing thereafter with their private lives: B Barber, Strong Democracy: Participatory Politics for a New Age (1984, University of California Press, Berkeley) 188. ¹⁰ J Elster ‘Introduction’ in J Elster (ed.) Deliberative Democracy (1998, CUP, Cambridge) at 1. ¹¹ See, for example, J Dryzek, Deliberative Democracy and Beyond: Liberals, Critics and Contestations (2000, OUP, Oxford). ¹² For a much more sceptical analysis of the potential of deliberative structures, see J Johnson, ‘Arguing for Deliberation’ in J Elster (ed.) Deliberative Democracy (1998, CUP, Cambridge) Ch. 7.

At this juncture, however, proponents of deliberative democracy must respond to two distinct sorts of questions. The first concerns the question of how to ensure that there are enough individuals who are informed, critical of authority in a nondogmatic way and committed to mutual understanding through a process of public deliberation. A second issue relates to the precise form and size of structures and mechanisms needed to facilitate more deliberative decision-making.¹³ Here, from the perspective of constitutional law, the stance of the courts towards legislative regulation of expressive activity will be important. An argument that will be made in this book is that the courts do have some role to play in safeguarding the conditions in which democratic deliberation among citizens can flourish.

¹³ See J Elster, ‘Deliberation and Constitution-making’ in J Elster (ed.) Deliberative Democracy (1998, CUP, Cambr...