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Freedom of Speech: is it the Primary Right?

Published online by Cambridge University Press:  17 January 2008

Sydney Kentridge
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Extract

The title of this article is not intended to disparage the value of freedom of speech in a modern democratic society. The right freely and publicly to criticise the institutions of government, the conduct of public affairs whether by the executive or Parliament, the freedom, indeed, to criticise the performance of the judiciary—that right is one of the glories of the unwritten constitution of this country. Its importance is constantly and forcefully emphasised in our highest courts. In one of the Spycatcher cases Lord Bridge of Harwich said that the right to freedom of speech is one of the fundamental freedoms essential to a free society.1 In the same case Lord Oliver quoted Blackstone's statement that the liberty of the press is essential to the nature of a free State.2 More recently Lord Goff of Chieveley, observing that he could see no inconsistency between English law and the European Convention on Human Rights in relation to freedom of speech, added: “This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world.”3

Type
Articles
Information
International & Comparative Law Quarterly , Volume 45 , Issue 2 , April 1996 , pp. 253 - 270
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. Attorney-General v. Guardian Newspapers Ltd [1987] 1 W.L.R. 1248, 1286.

2. Idem, p.1320.

3. Attorney-General v. Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109, 283.

4. State v. Van Niekerk 1970 (3) S.A. 655 (T).

5. State v. van Niekerk (2) 1972 (3) S.A. 711 (AD).

6. R. v. Home Secretary, ex p. Brind [1991] 1 A.C. 696.

7. Blackstone, , Commentaries, Vol.II, p.2.Google Scholar

8. Nationwide News Ply Limited v. Wills (1992) 177 C.L.R. 1; Australian Capital Television Pty Ltd and Others v. The Commonwealth of Australia (1992) 177 C.L.R. 106.

9. See the cases ibid and Theophanous v. Herald and Weekly Times Ltd (1994) 68 A.J.L.R. 713; Stephens v. West Australian Newspapers Ltd (1994) 68 A.J.L.R. 765. See also Jones, “Freedom of Political Communication in Australia” (1996) 45 I.C.L.Q. 392.

10. Constitution of the Republic of South Africa Act, No.200 of 1993, s.15.

11. Idem, s.33.

12. R. v. Central Independent Television plc [1994] Fam. 192.

13. Idem, p.203.

14. Collin v. Smith 578 F.2d 1197 (7th Circuit 1978).

15. Schenk v. United States 249 U.S. 47, 51–52 (1919).

16. Masses Publishing Co. v. Patten 244 Fed. 535 (S.D.N.Y. 1917).

17. Brandenburg v. Ohio 395 U.S. 444 (1969).

18. Anthony Lewis, Make No Law (1991), p.236. This is a lucid and compulsively readable account of freedom of speech and of the press in the US, and in particular of the litigation culminating in the Supreme Court decision in New York Times v. Sullivan 376 U.S. 254 (1964).

19. R. v. Keegstra (1990) 61 C.C.C. (3rd) 1.

20. Glimmerveen v. The Netherlands (1979) 4 E.C.H.R. 260.

21. American Booksellers Association v. Hudnut 771 F.2d 323 (1985).

22. Australian Capital Television, supra n.8, at p.143.

23. Abrams v. United States 250 U.S. 616,624 (1919).

24. Theophanous, supra n.9, at p.717.

25. Buckley v. Voleo 424 U.S. 1, 17 (1976).

26. Idem, p.288. See also First National Bank, Boston v. Bellom 435 U.S. 765 (1978).

27. Australian Capital Television, supra n.8.

28. [1974] A.C. 273.

29. Idem, pp.319–320.

30. Sunday Times v. UK (1979) 2 E.H.R.R. 245.

31. Contempt of Court Act 1981, s.2.

32. “Britain's Bill of Rights” (1978) 94 L.Q.R. 512. This was the text of the 3rd Blackstone Lecture, delivered at the University of Oxford.

33. Idem, pp.529–530.

34. Idem, p.530.

35. [1974] A.C. 273, 300.

36. Bridges v. California, Los Angeles Times v. California 314 U.S. 252 (1941).

37. Nebraska Press Association v. Stuart 427 U.S. 539 (1976). Burger CJ was at pains to point out that no right had priority over any other under the Constitution under all circumstances. He nonetheless asserted that freedom of speech from prior restraint “should have particular force as applied to the reporting of criminal proceedings”.

38. Campbell v. Spottiswoode (1863) 3 B. & S. 769.777; Blackshaw v. Lord [1984] Q.B.I, 26.

39. Rantzen v. Mirror Croup Newspapers (1986) Ltd [1994] Q.B. 670. (But see now John v. MGN Ltd. (C.A.) The Times, 14 Dec. 1995.)

40. Hector v. Attorney-General of Antigua [1990] 2 A.C. 312, 318.

41. In the Australian High Court Deane J observed that actions for defamation had become a valued source of tax-free profit for holders of public office: Theophanous, supra n.9, at p.745.

42. Derbyshire County Council v. Times Newspapers Ltd [1993] A.C. 534.

43. Following the judgment of the South African Appellate Division in which it had been held that the South African Railways (then a department of the government) could not mount an action for defamation: Die Spoorbond v. South African Railways 1946 A.D. 999.

44. [1993] A.C. 534, 538.

45. 376 U.S. 254 (1964).

46. 376 U.S. 254, 292 (1964).

47. Newton v. NBC 930 F.2d 662 (1990).

48. Curtis Publishing Co. v. Butts 388 U.S. 130 (1967).

49. Rosenbioom v. Metromedia 403 U.S. 29 (1971).

50. S.10. See In re an Inquiry [1988] A.C. 660.

51. Theophanous and Stephens, both supra n.9.

52. Quoted in the Faulks Report on the law of defamation (Cmd.5909), 1975.

53. Campbell v. Spottiswoode (1863) 3 B. & S. 769,777.

54. A recent decision of the Court of Appeal points in that direction, departing in that respect from Rantzen, supra n.39. See John v. MCN Ltd, The Times. 14 Dec. 1995.

55. [1993] A.C. 534, 548.

56. Ibid.

57. Idem, p.550. In South Africa an article criticising the government for racial bias in the exercise of the prerogative of mercy was held to be capable of giving rise to an action for defamation by the (unnamed) minister chiefly responsible for the exercise of the prerogative: South African Associated Newspapers v. Pelser 1975 (4) S.A. 797 (AD).

58. [1992] Q.B. 770.

59. Butler-Sloss LJ, Idem, p.832.

60. Manning and Church of Scientology of Toronto v. Hill (1995) 126 D.L.R. (4th) 129.

61. (1986)8 E.H.R.R.407.

62. Art.1: “The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority.”

63. The Republic of South Africa Constitution Act, s.10: “Every person shall have the right to respect for and protection of his or her dignity.”

64. In Schenk v. United Stales, supra n.15.

65. Blackstone, , Commentaries, Vol.1, p.6.Google Scholar