Free Expression

Question 1

What are the 2 consequentialist rationales that support freedom of expression? (4)

Answer 1

1) Truth Seeking/Marketplace of Ideas: when you are met with what you see as an error, your version of truth would be livelier & the best test of truth is the power of thought to get itself accepted in the competition of the market
2) Democratic self governance: forum, watchdog; journalism will raise problems
3) Media education can combat fake news.
4) Media can take measures against fake news (content moderators, AI, third party fact checking etc)

Question 2

What is the consequentialist rationale that is against freedom of expression? (3)

Answer 2

1) Market failure: Marketplace of ideas can fail to produce optimal outcomes, since it relies on rationality of participants.
2) ^ Some ideas should never be circulated, lest it gains momentum (e.g. advocacy for genocide)
3) Media should be a partner to the government for national development

Question 3

What is prior restraint?

Answer 3

Restraining expression before circulation

Question 4

What are 3 types of prior restraint?

Answer 4

1) License (to publish)
2) Requires vetting before publication/distribution
3) Ban publication (but if already published material receives restraint on further distribution, it counts too)

Question 5

Why is prior restraint legally presumed to be invalid?

Answer 5

Implication of truth seeking rationale of FoE: belief that truth will prevail, so they feel it is worse to have prior restraint than subsequent punishment

Question 6

What is subsequent punishment?

Answer 6

It punishes the publisher after there is circulation, through fines, jail or lawsuit.

Question 7

What is Blackstone’s view on freedom of expression?

Answer 7

Free speech is the absence of prior restraint, not the absence of subsequent punishment.

Question 8

Is there licensing in UK and US?

Answer 8

UK: Licensing of publications ended in 1695
US: First Amendment - there is a prevailing understanding that prior restraints violate free speech, so there is no publication licensing

Question 9

Do newspapers require licensing in US and SG?

Answer 9

US: Never licensed
SG: licensed (1 year)

Question 10

Do other publications require licensing in US and SG?

Answer 10

US: No bans
SG: Some banned

Question 11

Do films and videos require licensing in US and SG?

Answer 11

US: no bans or vetting required before release
SG: some banned; vetting required before release

Question 12

Do online news sites require licensing in US and SG?

Answer 12

US: no licensing
SG: licensed

Question 13

Do broadcasters require licensing in US and SG?

Answer 13

US: Licensed
SG: Licensed

Question 14

Since there is common prior restraint of broadcasters globally, how is the presumption against prior restraints overcome?

Answer 14

Rationales:

1) public ownership of electromagnetic spectrum
2) government must act as traffic cop - issue license to ensure stations stay on assigned frequencies

Question 15

What is the non-consequentialist rationale for freedom of expression?

Answer 15

Human rights argument: FoE is among universal human rights, with divine, philosophical and legal foundations

Question 16

What is the non-consequentialist rationale against freedom of expression?

Answer 16

Cultural Relativism: norms are not universal, but instead culturally specific. Thus, asian values may take priority over human rights like FoE

Question 17

What are the foundations of human rights?

Answer 17

Divine: the Creator decided we are all equal (in US declaration of independence)
Philosophical: natural law - natural rights can be derived from rational analysis of human nature
Legal: UDHR (not legally binding), ICCPR

Question 18

What is ICCPR’s rationale on freedom of expression? (2)

Answer 18

Includes rights to hold opinions & freedom of expression, but they are subject to certain restrictions (some laws may be create for:)

1) Respect of rights & reputations of others
2) Protection of national security, public order, public health, public morals

Question 19

According to the ICCPR, what can we not restrict?

Answer 19

1) discussion of government policies & political debate
2) peaceful demonstrations/political activities (including for peace/democracy)
3) expression of opinion and dissent

Question 20

What is a constitution?

Answer 20

It is a founding document of a nation that establishes the government structure. It limits government power, to protect rights & liberties of people

Question 21

How do we make amendments to SG’s Constitution? (2)

Answer 21

1) to make amendments, 2/3 of parliament must agree
2) to make entrenched (established, firm) provisions on SG’s sovereignty: 2/3 of parliament & 2/3 of majority in national referendum (general vote of a single question)

Question 22

What is a judicial review?

Answer 22

By right, any law enacted that is inconsistent with the constitution would be void. However, courts can hear cases challenging the constitutionality of laws that the Parliament passes on certain aspects

Question 23

What are 5 exceptions in which SG can enact laws that violate the freedom of expression? (Art. 14)

Answer 23

In the interest of:

1) SG’s security
2) Friendly relations with other countries
3) Public order/morality
4) (Restrictions designed to ) protect privileges of parliament
5) Provide against contempt of court, defamation or incitement to any offence

Question 24

What is one method that amendments can be proposed to the US Constitution? (3)

Answer 24

Congress (federal legislature) proposes amendment, that is

1) Endorsed by 2/3 of Senate
2) Endorsed by 2/3 of House of Representatives
3) 3/4 of state legislatures will ratify (give formal consent to) amendment

Question 25

What is the US Free Expression Clause?

Answer 25

Congress shall make no law that abridges the freedom of speech/the press (limited exceptions, applies to state and local governments, but doesn’t apply to private actors)

Question 26

What is the difference between liberal and democracy and illiberal democracy?

Answer 26

Liberal has strong individual liberties & rights, where there is a stronger tradition of constitutional litigation (judicial scrutiny of legislation, executive orders). For illiberal democracies, there are fewer successful challenges to constitutionality of laws for violating individual rights.