Freedom of Expression

A critical and comparative analysis

Vincenzo Zeno-Zencovich

• Publisher: Routledge-Cavendish
• Year: 2008
• ISBN:
  9781134035946
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book takes a multidisciplinary approach to the issues surrounding freedom of expression, looking at the current legal position in a number of European countries as well as engaging with the wider debates on the topic amongst sociologists, political scientists and economists.

In the book Vincenzo Zeno-Zencovich addresses recent developments which have had a bearing on the debate including the changes in communication brought about by the internet, and the growing role of the European Union and the Council of Europe.

Chapter 1:
Freedom to Print or Freedom of the Press?

For over two centuries the freedom of expression has been closely linked with the freedom of the press. The First Amendment to the US Constitution (1791) couples them: ‘Freedom of speech and of the press’. The Declaration of the Rights of Man and of the Citizen (1789), after affirming that ‘La libre communication des pensées et des opinions est un des droits les plus précieux de l’homme’ (The free communication of ideas and opinions is one of the most precious of the rights of man), adds that ‘Tout citoyen peut donc parler, écrire, imprimer librement’ (Every citizen may, accordingly, speak, write and print with freedom).

This ‘donc’ (‘accordingly’) embodies a conception that the international charters of human rights and the European constitutions, created after the Second World War, developed by distinguishing between the expression of opinion and the various means by which this could be accomplished.

More recently, however, the European Charter of Fundamental Rights (ECFR) has affirmed: ‘The freedom and pluralism of the media shall be respected’ (Article 11(2)).

The conceptual difference between the freedom of expression and freedom of the press are clear enough. The former refers to the substance of a freedom; the latter is, in the terms of the analogy below, its container.

Nevertheless, the fact that freedom of expression normally manifests itself by means of the latter has led to the kind of confusion on which the positions criticised below⁹ are based, and which can be expressed in the following syllogism: free expression is guaranteed; free expression uses certain media; ergo, those media are to be protected.

We are thus confronted with a transfer of safeguard from free expression to one of its means, and thence to the position where the means are to be protected in their own right; in other words, whatever these media produce are held to be free expression and thus require protection.

To deconstruct and exemplify, this rationale can be logically articulated thus: X (wine) is protected; in order to be distributed X (wine) requires Y (a bottle); Y (the bottle) is protected because it is used to contain X (the wine); hence anything – even water – that Y contains is protected because the safeguard has been transferred from the substance to the container.¹⁰

In other words, the sense of freedom of expression, as a political freedom enjoyed by individuals and the groups in which they associate, has been progressively lost and has become attached to persons who can at most be considered instrumental in the diffusion of the thought of others.

The mutual identification of the two aspects has come about largely through an interest served in attributing to an activity (namely, the press) prerogatives that properly belong to an innate human quality (thought). There arise from this certain consequences and issues that will repay closer investigation.

1.1. The printing industry

The reason why the freedom to print has been so solemnly asserted ever since the eighteenth century is clearly that the press is the only means by which thought can be transformed from mere oral enunciation into a form that can be duplicated and circulated without limits of time and space.¹¹ Thought is reified in a printed document and can then be transmitted from one mind to countless others. It is thus easy to identify thought with print. However, as soon as, from the end of the nineteenth century, other means of diffusion of ideas – cinema, radio and television – appeared alongside the printing press, this identity began to unravel, and it became easy enough for anyone to distinguish between expression of ideas and the means by which they were disseminated.

On the other hand, a moment’s consideration of the multifarious product of the printing press is enough for us to realise it is subject to protection not of itself, but because it reproduces ‘thought’.¹² No one would suppose that the freedom to print is concerned with calling cards, wedding invitations or gift tags, although these are produced solely by printing: they lack either the requisite content or ideas. So, asserting a freedom to print is a synthetic formula for asserting the freedom of expression by means of print. It does not indicate a separate freedom, distinct from and independent of the former.¹³

Such a line of development is consistent with the origins of freedom of expression (of thoughts), which arose after and consequent upon the freedom of thought tout court. It thus dates from the demand for free exercise of the intellect, raised against various totalitarian (principally religious) ideologies that denied the court of the conscience – indeed, to the present day, one can ‘sin’ through one’s ‘thoughts’. Yet the intellect is precisely that which separates humanity from other animals and is the precondition of any freedom to communicate one’s ideas to others.¹⁴ Hence the indissoluble nexus between a humanistic perspective, putting mankind at the centre of a system of legal rules, and a freedom – of thought and expression – which is necessary to its achievement.¹⁵

1.2. Freedom to print

This consideration is immediately critically undermined by what we might call a grammatical analysis. The First Amendment to the US Constitution does not refer to ‘freedom to print’, but to ‘freedom of the press’. And this is not just a legal quibble. The founding fathers saw the press, in the sense of a continuing activity of disseminating ideas rather then the narrow sense of typographic production, as an essential element in the new democracy they were creating. Their interest was thus in the Press with a capital P. From the precursors of the revolution onwards, US political life has marched in step with the role of the press, as Alexis de Tocqueville grasped perfectly more than a century and a half ago.

This activity, which began as debate, propaganda and proselytism, was soon transformed, by a dynamic in the social history of the United States, into a business which demanded and obtained a special status – such was the political power it wielded.¹⁶

The difference a small change in terminology can make is readily apparent: freedom to print as opposed to freedom of the press. The former applies to an individual and the protection of his utterances, the latter to a powerful, organised sector of business.¹⁷

This is not the place for sterile critiques and historical surveys of what has become established fact. Nevertheless, one cannot avoid drawing attention to two aspects. Firstly, the US model is not the same as the continental European model, and confusing the two, or mapping one on the other, can lead not just to an unreflecting identification of the two, but to a substantial turning away from one’s own politico-philosophical traditions.¹⁸ Secondly, the US model of the primacy of the press is bounded by the complex mechanism of checks and balances characteristic of that country, moderating its power and subjecting it to disciplines of reasonableness and balance.¹⁹

Affirming the freedom of the press, as a constitutionally privileged regime for businesses engaged in mass communications, thus entails a consideration of what the quid pro quo of that freedom might be, in terms not only of the law, but of society too.

Certain observations need to be added to the assertion that the press is considered in the European – mainly, but not exclusively, continental – legal tradition as a means for the dissemination of ideas. This undoubtedly results from a persistent and incontinent desire to control the Press (with a capital P). ‘Press laws’, registration requirements, rolls, managers, responsible directors, penalties for the ‘underground’ press and for so-called press offences in general, all these for centuries attested to an unallayed suspicion on the part of legitimately constituted powers towards the exercise by private institutions and individuals of power that rivalled and in some cases surpassed their own.²⁰

It is evident²¹ that these measures – found in all European states – taken as a whole are directed against the press, when a comparison is made with the US model where attempts at measures of a similar nature have been progressively abandoned or struck down as unconstitutional precisely because they targeted the press.²²

Therefore in interpreting the principles governing the current application of the rights in question we must remember that they are intended to affirm the freedom to express oneself in any medium, and not the freedom of (those who run) the media per se^.23 This conclusion may not accord with what one feels should be the case, but it seems to correspond to reality.

There is, however, a further aspect which must not be neglected in evaluating the European model, and that is the pervasive influence of tendencies which, to simplify, we may describe as individualist or as invoking notions of natural law.

The human being, as a physical, psychological or moral entity, is at the centre of the European ways of thinking, both in a philosophical and a juridical context. Whereas US pragmatism shies away from creating abstract categories, in Europe concepts such as personality rights and general principles such as human dignity are not only much debated and thought about, but have also produced cogent concrete rules. The point here is not, of course, to set up one model against the other and find it preferable, but rather to seize once again a hard fact that explains – or helps to explain – why in Europe expression of opinion has an individualistic rather than a commercial connotation.

It cannot be argued that the two models are totally distinct, because there are large areas of overlap and their mutual boundaries are shrouded in fog. The object is rather to set out a different interpretive approach, to view the system with a different trajectory.

1.3. Limits to freedom to print and freedom of the press

Historically, and despite being so called, the ‘freedoms’, political, public and civil, both ‘to print’ and ‘of the press’, have been subject to firm regulation as to when, where, how and to what extent they could be exercised. The first problem is how such restrictions have been justified in the face of the general principle of freedom of expression. In other words, given that expression is free, how are limits to the use of certain media to be justified? Why are some media less ‘free’ than others?²⁴ The answer to this has a significant impact on the very concept of freedom of expression. Since if the media most widely used to diffuse ideas are the most closely controlled, the scope of that freedom is visibly reduced to the socially most marginal contexts. There is thus a logical problem with the coherence of the very notion of a freedom that has to mould itself to more general restrictions. It is evident that in modern societies, rendered complex by the sheer numbers of people interacting and of competing interests, other traditional freedoms are also subject to important limits: the right to circulate is compromised by environmental considerations, the right to strike by consumer interests, freedom of choice in education by public policy, not to mention freedom of economic activity, which has always been hedged in by restrictions. Yet it is none the less clear that while other freedoms – those of conscience, association and political organisation – have extended their range, the freedoms under discussion here have been subject to an ever-increasing burden of regulation. Questions therefore arise as to whether this is necessary and whether the pursuit and reconciliation of interests calls for it.

Out of this emerges a second problem: what are the justifications that can be offered for the various limitations? Currently, these are diverse. The first, earliest and most entrenched is that they are necessary to prevent abuses of the freedom and to prevent harm to individual interests. It must be noted, though, that this implies a massive level of preventive intervention in order, as a rule, to select who may or may not exercise a particular freedom or activity. Another is that the complex articulation of potentially conflicting interests requires the adoption of similarly articulated disciplines (morality, minors, personality, competition etc.). This is a tenable position but it renders attempts at a unified regime almost impossible. Yet another, fairly widely cited, justification is that the ubiquity and influence of certain media (above all television) makes it essential to keep them under control. This is an argument that, even while it parallels those put forward in relation to the press when that was the only widely diffused medium, relies on a premise (special influence) that remains to be amply demonstrated.

Therefore, if it is accepted that freedom of expression like any other freedom is subject to limits, it appears necessary to provide a coherent and adequate framework for justifying such limits.

A useful point of reference in this quest may be supplied by a principle – that of proportionality – set out in the European Charter of Fundamental Rights (article 52): ‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

Bearing in mind that such constructs are open to debate and susceptible to shifts in political, economic and social circumstances, we shall attempt to canvass various arguments, perhaps on more solid grounds than some of those currently heard, relevant to the existing limits.

1.3.1. The distinction between individual and corporate exercise

If the freedom of expression is essentially a fundamental human right, it is fair that it should exist in its f...