International and Comparative Aspects
Paweł Jabłoński
Maciej Pichlak
Department of Legal Theory and Philosophy of Law
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Paweł Jabłoński:
office hours on Tuesdays, from 8.10 to 10.10 a.m., room 301,
building A
[email protected]
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Maciej Pichlak:
Office hours on Fridays, 11.30 to 13.30, room 302, building A
[email protected]
Test: June 7th
Questions only from lectures
- R. Cohen-Almagor, Speech, Media and Ethics.
The Limits of Free Expression, Palgrave
Macmillan, 2005
- Franciszek Longchamps de Bérier, Textbook
on the First Amendment: Freedom of Speech
and Freedom of Religion, Od.Nowa, 2012
- Eric Barendt, Freedom of Speech, Oxford
University Press, 2005
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legal level
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sociological level
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philosophical level
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What are the international legal acts relating
to freedom of expression?
What are the similarities and differences
between the protection of freedom of speech
in different legal orders?
What are the most famous or most important
court judgments on the issue of freedom of
expression?
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What is the actual level of protection of the
freedom of speech in various countries?
What are the most relevant controversies
about it and cases of its abuse?
Why is the problem of freedom of expression
so important to modern societies?
Why are such phenomena as technical
progress, globalization, or social differentiation important for freedom of expression?
“ We are all neighbours now. There are more phones than
there are human beings and close to half of humankind has
access to the internet. In our cities, we rub shoulders with
strangers from every country, culture and faith. The world
is not a global village but a global city, a virtual
cosmopolis. Most of us can also be publishers now. We can
post our thoughts and photos online, where in theory any
one of billions of other people might encounter them.
Never in human history was there such a
chance
for
freedom of expression asthis. And never have the evils of
unlimited free expression - death threats, paedophile
images, sewage-tides of abuse - flowed so easily across
frontiers”.
Timothy Garton Ash, Free Speech. Ten Principles for a Connected World
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Which philosophers are important to the
issue of freedom of speech?
What types of arguments are there for
freedom of speech?
What kinds of reasons are there for
restricting this freedom?
Is speaking an action?
What does it mean to be free?
Why freedom of speech is so important for
democracy?
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John Austin, How to do Things with Words?
Paul Ricoeur, Oneself as Another, The Course
of Recognition.
Judith Butler, Excitable Speech: A politics of
the Performative.
Lecture 2
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we must distinguish between the defence of
freedom of expression as a particular,
essential freedom, and the defence of
democracy in general
free speech doesn’t entail absolute
protection of any manifestation of freedom
of expression
two opposing positions on the issue of
relationship
between
philosophical
justification and a judicial decision
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Argument from truth
Argument from self-fulfilment
Argument from democracy
Argument from suspicion)
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Argument based on the importance of open
discussion to the discovery of truth
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Truth as a goal and truth as a means
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Absolute and relativistic positions
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Free speech is an integral aspect of each
individual’s right to self-development and
fulfilment
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We need freedom of expression because it
makes the participation of citizens in
democracy possible
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The most important reason for the protection
of freedom of expression is a need to protect
the public from government abuse
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The first treats free speech instrumentally – “that is, not because
people have any intrinsic moral right to say what they wish, but
because allowing them to do so, will produce good effects for the
rest of us”. (R. Dworkin)
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“The second kind of justification of free speech supposes that
freedom of speech is valuable, not just in virtue of the
consequences it has, but because it is an essential and
“constitutive” feature of a just political society, that government
treat all it adults members, except those who are incompetent, as
responsible moral agents” (R. Dworkin)
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Both allow exceptions
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They are not mutually exclusive
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The instrumental justification is both more
fragile and more limited
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Search for truth
Individual autonomy
Democracy and self-government
Tolerance
„The purpose of seeking the truth supports a
distressingly narrow scope for free expression”
Opinions, evaluative statements: how to justify
them?
They cannot be easily falsified, but they also do
not directly contribute to truth-seeking.
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Protection of solely true statements may lead
to a „chilling effect” of self censorship.
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A paradox of underprotection (of truth) and
overprotection (of false)
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A matter of politics, not truth?
“According to some writers, the search for truth
theory is ultimately based on the Millian argument
about uncertainty, and on the virtue of
scepticism.”
Sadurski’s reply:
“The "infallibility" stick is too crude a weapon with
which to attack the proponents of restraints on
speech. If logically extended, it would undermine
not only the legitimacy of restrictions on freedom
of speech, but also any restrictions on any human
freedom, simpliciter”.
It’s linked to the argument from self-fulfillment.
Possible objections:
 It cannot justify all instances of the excersice
of freedom of expression;
 It does not allow to distinguish between
verbal and nonverbal forms of self fulfillment;
 It does not allow to limit the freedom of
expression, as long as the latter serves to self
fulfillment.
The argument of Alexander Meiklejohn:
„Democracy requires that citizens be free to
receive all information which may affect their
choices in the process of collective decisionmaking and, in particular, in the voting process.
After all, the legitimacy of a democratic state is
based on the free decisions taken by its citizens
regarding all collective action. Consequently, all
speech that is related to this collective selfdetermination by free people must enjoy absolute
(or near-absolute) protection.”
Objection:
“Others have observed that self-government is
not necessarily linked to the principle of strong
protection of freedom of speech; indeed, one
may perhaps argue for restricting free speech
on the basis of self-government”.
We move a point of argumentation from a
speaker to an auditor.
Freedom of expression serves here to teach us
tolerance towards a variety of existing
opinions.
Objection:
Are there any limits of tolerance? Should we
practice tolerance for intolerance (e.g. to hate
speech)?