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Human Rights And Civil Liberties > Freedom of Expression > Flashcards

Freedom of Expression Flashcards

1
Q

Dress as a form of expression?

A

Tinker v. Des Monies School District [US CASE]

  • Black arm band in protest against the Vietnam war
  • Supreme Court upheld the first amendment right in schools

this could be contrasted with the Burka Ban in France

Gough v. UK

  • G believes that the unclothed body is inoffensive, and keeps on being arrested under public order laws
  • ECHR - this is a form of expression but it is not legitimate therefore there is no interference with his freedom of expression due to moral and public order considerations
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2
Q

Fire as a form of expression?

A

Texas v. Johnson [US CASE]

  • burning the American flag in Texas where it was a criminal offence to do so
  • Supreme court held this action was protected under freedom of expression under the first amendment, argued that the US is so strong it can withstand criticism
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3
Q

Article 10 (1) ECHR

A

Everyone has the right to freedom of expression. It should include:
- freedom to hold opinions
- receive and impart information and ideas
without the interference by a public authority and regardless of frontiers

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4
Q

Article 10 (2) ECHR

A

The exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others as well as maintaining the authority and impartiality of the judiciary”

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5
Q

What are the three elements of the qualified nature of freedom of expression?

A
  1. prescribed by law
  2. necessary in a democratic society
  3. for a legitimate aim (there is a valid exception)
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6
Q

How is freedom of expression protected in USA, Canada and UN?

A

USA - 1st amendment of the Constitution
Canada - The Canadian Charter of Rights and Freedoms
UN - The International Covenant on Civil and Political Rights

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7
Q

What are the three arguments for freedom of expression?

A
  1. the argument for democracy
  2. the argument for truth
  3. the argument for self fulfilment and self development
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8
Q

What statue demonstrates the need for freedom of expression and its link with democracy?

A

Article 9 of the Bill of Rights 1688 - demands a clear freedom of expression within parliament

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9
Q

The ECHR’s approach to the need for democratic free speech

A

Sunday Times v. UK:

“freedom of expression constitutes one of the essential foundations of a democratic society”

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10
Q

Castells v. Spain (Quote)

A

“freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to comment… upon the preoccupations of the public opinion; it thus enables everyone to participate in the free political debate which is at the core of the concept of a democratic society”

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11
Q

The US approach to the democratic interpretation of freedom of expression

A

Justice Breandeus in Whitely v. California
“the freedom to think as you will and speak as you think are indispensable to the discovery and spread of political truth [and] that the greatest menace to freedom is an inert people”

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12
Q

What is the relationship between totalitarian states and freedom of expression?

A

They restrict freedom of expression

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13
Q

What does Stone argue are the two main consequences for democracy from freedom of expression?

A
  1. There is a wide scope for exchange of opinions about politics and political leaders, and through this debate an individual can make informed decisions about their desire for an alternative society
  2. the individual needs to consider the difference between viewpoints, opinions and facts - note this in relation to the “alternative facts” argument portrayed by Trump
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14
Q

How does Stone (2016) criticise the democratic argument for freedom of expression?

A

He states that this account does not defend the right to produce art an limits information to that of a political content

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15
Q

What does the argument relating to truth follow in terms of freedom of expression?

A

Truth is the market place of ideas, such as for choosing a religion or career, ideology etc.

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16
Q

West Virginia State Board of Education v. Barnette [US CASE]

A

“if there is any star in the constitutional constellation it is that no official high or pretty can proscribe what shall be orthodox in politics nationalism religion or other matters of opinion” - however what amounts to a matter of opinion is hard to define, consider Holocaust Denial

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17
Q

Justice Brennan in Texas v. Johnson

A

“if there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. the first amendment does not guarantee that other concepts virtually sacred to our nation as a whole - such as the principle that discrimination on the basis of race is odious and destructive - will go unquestioned in the market place of ideas”

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18
Q

Who is the argument for truth associated with?

A

John Stuart Mill assertion that no one has the monopoly on truth, therefore the majority cannot suppress the minority, as it is something that should be tested against other ideals.

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19
Q

John Stuart Mills statement about truth in freedom of expression?

A

“An opinion that corn dealers are stavers of the pour, or that private property is robbery ought to be unmolested when simply circulated in the press, but it may justly incur punishment when delivered orally to an angry mob assembled before the house of a corn dealer” - John Stuart Mill, On Liberty

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20
Q

What is the criticism of the argument of truth?

A

Stone argues that it fails to provide an explanation for artistic expression

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21
Q

The argument for self fulfilment

A

this is the link between works of art and civilisation and freedom of expression. Expression is within human nature therefore it should be granted as a human right.

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22
Q

Stones criticism of the argument for self fulfilment?

A

Under this interpretation of freedom of expression, factual reporting is not protected

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23
Q

Stones approach to the three arguments for freedom of expression?

A

He argues that not one can be considered in isolation, as not one fully can account for freedom of expression

24
Q

What are the reasons why freedom of the press should be allowed?

A
  • holding government and ministers to account
  • publishing issues that need attention
  • educating citizens for informed decisions
  • connecting people in civil society
  • investigative journalism exposes and uncovers scandals (e.g. Watergate)

however - the press are sometimes shallow (Nicol and Robertson), and the phone hacking scandal demonstrates their willingness to invade privacy

25
Q

What is the role of the press?

A

They hold a constitutional role in holding the government to account

26
Q

What cases demonstrate the ECHR approach to freedom of the press?

A

Castells v. Spain, Lingens v. Austria, Thorgeirson v. Iceland

27
Q

Castells v. Spain (Case)

A
  • it is permissible to attack/ criticise a government
    C was a senate representing a minority Basque party who complained against the Spanish police, he was convicted and disqualified from office, he argue there had been a violation of his article 10 rights
    ECHR found that had been a violation “with regard to a government the limits of permissible criticism are wide than that of a private citizen”
  • contrast this with the democratic argument
28
Q

Lingens v. Austria

A
  • how far can you criticise a politician
    L was a journalist who published an article about the participation of Austrians in WW2, had criticised a former chancellor for associating with Nazis
    Defamation proceedings were insued against with a fine of 15,000 euros - this constituted an interference with his right to freedom of expression
    ECHR held that the interference was
    1. prescribed by law (defamation)
    2. was in pursuit of a legitimate aim of protection the chancellor
    3. however it was a disproportionate response and therefore was no necessary in a democratic society
    the court ruled in this case that the limits over what are acceptable differ on the basis of if the individual is acting in a public or private capacity
29
Q

Thorgierson v. Iceland

A

T wrote about alleged police brutality in Iceland and was convicted of defamation, he argued this was an unlawful restriction of his freedom of expression
ECHR held this was disproportionate restriction due to the police brutality being in the public interest, therefore it was necessary in a democratic society

30
Q

What is the US approach to press freedom?

A

New York Times v. Sullivan
case concerned a full page ad in NYT criticising the actions of S who was a police chief in Alabama, however it contained factual inadequacies - sued for defamation with damage payments
Supreme Court held that a state official suing for liable unless he could prove actual malice, false statements made negligently are still protected under the 1st amendment
[this is v. different to the UK]

it was held in the case of Miami Herald Punishing v. Tornillo that a newspaper could not be compelled to publish a reply to an article, this is not an inhibition of freedom of expression

31
Q

Who outlines the limits to the freedom of expression?

A

John Stuart Mill and the Harm principle, however he did not define what was meant by harm

32
Q

What is the liberal view of the right to offend?

A

harm is usually narrowly defined in the contract of offensive or robust speech unless there is some clear and objective reason to the contrary

33
Q

What is the US case law surrounding the right to offend?

A

Chaplinsky v. New Hampshire, Brandenburg v. Ohio, The Skokie Case, Hustler Magazine v. Farwell and Synder v. Phelps

34
Q

Chaplinsky v. New Hampshire

A

C caused a public order offence by distributing religious tracts and told the arresting officer you are a God-damned racketeer (was bad at the time), he challenged his arrest on freedom of expression grounds, the court upheld his arrest, but gave guidance:
“the lewd and obscene, the profane, the libellous and the insulting or ‘fighting words’ those which by their very utterance inflict injury or incite immediate breach of the peace” - Justice Frank Murphy

35
Q

Brandenburg v. Ohio

A

B was a leader of the KKK made a racist speech at a rally called for revenge against racial minorities, he was convicted by a law which made it illegal to advocate violance as a means of accomplishing political reform. Supreme Court held this law violated B’s 1st amendment rights. In this case the court established a 2 pronged test:

  1. “speech can be prohibited if it is directed at inciting or producing imminent lawless action
  2. if it is likely to produce such action”
36
Q

The Skokie Case

A

a Nazi group in the US attempted to march through Skokie which s a Jewish town however an injunction was placed upon the march.
they argued that this injunction was a violation of their 1st amendment rights
Supreme court held they have a right to march.
[it was argued that seeing a swastika to these people was akin to being physically attacked, however this did not constitute fitting words]
“any shock affect must be attributed to the content of the ideas expressed… public expression of ideas may not be prohibited merely because the idea themselves are offensive to some of the hearers”

37
Q

Cohen v. California

A

C went into a court room with a “Fuck the Draft” jacket on, Justice Harlan commented that “one mans vulgarity is another’s lyric”

38
Q

Hustler Magazine v. Farwell

A

F was a right wing political figure, H published an extremely offensive interview, at the bottom of the page it stated it was a spoof
Supreme Court held: no damages should be given to F and the 1st amendment protected the publishers

39
Q

Synder v. Phelps

A

Case concerned the West Borough Baptist church pickitting at dead soldiers funerals, the Supreme court held that protested speech was protected under 1st amendment

40
Q

What is the European Approach to freedom of expression in offensive speech - case law?

A

Otto-Preminger Institute v. Austria, Wingrove v. UK, Gineswski v. France, M’Bala M’Bala v. France

41
Q

Otto-Preminger Institute v. Austria

A

The Austrian government seized a blasphemous film which was to be shown in a catholic area
there was held to be a violation of article 10, however it was done in a proportionate manner in order to protect the rights and freedoms of others
ECHR: “The respect for the religious feelings or believers … can be legitimately be thought to have been violated by provocative portrayals of objects of religious veneration”

42
Q

Wingrove v. UK

A

The UK refused to allow the distribution of a blasphemous film
it was held that there was no violation of article 10 due to the wide margin of appreciation

43
Q

Gineswski v. France

A

G was a journalist investigating the link between the Holocaust and the Catholic church, he was sued for defamation, he argued this was a violation of his article 10 rights
the ECHR held that this was a violation as this was a matter of public interest

44
Q

M’Bala M’Bala v. France

A

French comedian invited a famous Holocaust denier on his show, brought on an actor dressed in Concentration camp uniform
charged with insulting the Jews, and therefore fined
argued this contravened his article 10 rights
FRANCE ARGUED:
Article 17 - it would be an abuse of human rights to allow him to argued under article 10, as he was deliberately offending Jews
M’BALA ARGUED:
the purpose of the show was to highlight that there is an academic double standard in terms of the WW2 Holocaust in comparison to other Holocausts
ECHR RULED:
upheld the French argument, held that the programme lost its satirical element, and crossed the line into antisemitism

45
Q

What is the criticism of the ruling in the M’Bala M’Bala case?

A

it does not allow his self fulfilment, through artistic comedy - should this form of expression be limited before others?

46
Q

Should there be an offence of Holocaust Denial in the UK?

A

HD should be permitted under UK law because confrontation with it focuses us ti re-examine and re-affirm the value of the evidence supporting our belief that the Holocaust happened, this is flows from the arguments of Mill. However should consider the Harm principle purported by Mill, and the effect this could have on Jews, therefore need to consider the line at which consideration of the facts of the Holocaust should be analysed and when it should be prevented. Link this to the Skonkie case (US).

47
Q

Holocaust Denial - McKinnon (2006)

A

Holocaust denial may alter the truth that is presented to us, however there is extensive empirical evidence so would this be the case, therefore it should not be prohibited at law, however HD should not be allowed in academia

48
Q

Holocaust Denial - Scanlon

A

argues that the interests of those expressing the opinion should be considered as well as those impacted by such an opinion

49
Q

What are the laws governing racial hate speech?

A

Public Order Act 1986 s.18,
displaying abusive, threatening or insulting words with the intent to stir up racial hatred, or with regard to the circumstances is likely to stir up racial hatred

50
Q

What are the laws governing religious hate speech?

A

Racial and Religious Hatred Act 2006
offences involving stirring up hatred against persons on religious grounds through displaying merely threatening words with intent to stir up hatred. Note the distinction between religious hatred and blasphemy.

51
Q

What are the laws governing sexual orientation hate speech?

A

The Criminal Justice and Immigration Act s.74

use threatening words or behaviour with intent to stir up hatred based on sexual orientation

52
Q

Holocaust Denial - Waine (2008)

A

to defeat denial education as well as laws against it are needed, legislation alone is not enough deterrent for a lot of people

53
Q

Religious Hatred - Hare (2006)

A

The RRH is not conducive to freedom of expression as UK already has ample criminal laws to deal with this issue

54
Q

Religious Hatred - Cumper (2006)

A

argues that the RRH is great because it offers protection to all faiths and it supplement existing PO powers

55
Q

Barrent (2005)

A

argues that the arguments for free speech have been developed by philosopher rather than legal, however the court should consider them
Mills idea that a market place of idea seems way too optimistic

56
Q

Ali (2005)

A

argues that for some religions to leave their religon the cost is high however the importance of religious freedom of to criticise is more important

Human Rights And Civil Liberties (10 decks)

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