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Part VII Rights, Ch.42 Freedom of Expression

Eric Barendt

From: The Oxford Handbook of Comparative Constitutional Law

Edited By: Michel Rosenfeld, András Sajó

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 September 2021

(p. 891) Chapter 42  Freedom of Expression

I.  The Constitutional Significance of Free Expression

Constitutional courts have frequently emphasized that freedom of expression is essential in a liberal democracy. In one of its earliest rulings on the guarantee of the freedom in the post-war German Basic Law, the Constitutional Court in Karlsruhe said:1

To a free democratic constitutional order [freedom of expression] is absolutely basic, for it alone makes possible the continuing intellectual controversy, the contest of opinions that forms the lifeblood of such an order … [i]t is the basis of all freedom whatever, ‘the matrix, the indispensable condition of nearly every other form of freedom’.

The quotation comes from the judgment of Justice Cardozo in Palko v Connecticut,2 in which the US Supreme Court had recognized that freedom of speech has a special status in the constitutional order. Freedom of expression is basic, in that its exercise enables democratic government to claim legitimacy when it regulates the conduct of its citizens, perhaps even (p. 892) when it restricts the exercise of other rights—for example, procedural or property rights—which are not basic in this sense. Only citizens who are free to challenge the wisdom of, say, economic or social legislation, can be expected to comply with its requirements.3

Another argument for the special position of freedom of expression is that its exercise is essential for social progress and for the intellectual and moral development of individuals.4 There is also the argument from truth, which received its classic philosophical statement in the writings of John Stuart Mill.5 Truth, as Justice Wendell Holmes put it in his famous judgment in Abrams,6 should be determined in the marketplace of ideas, rather than by regulation. Even if we are sceptical of the claim that truth will triumph in the free market, we are probably less willing to allow governments to decide what is true and which expressions may be proscribed as false. Further, it is the role of constitutional courts to protect the people against the tyranny of ‘governing majorities’,7 so freedom of expression must be protected, even when its exercise is limited in accordance with the wishes of a freely elected parliament or congress.

The significance of freedom of expression for liberal democratic government may be shown by reference to the constitutional position in Australia. The Constitution of Australia (1900) lacks a Bill of Rights, so there is no explicit guarantee of freedom of expression.8 Yet its High Court has held in a number of decisions from the early 1990s that a freedom of political communication must be implied in the federal Constitution;9 it would make no sense for it to provide for democratic elections to the Senate and House of Representatives, unless people were free to debate political issues. This development is of considerable theoretical and comparative interest. Freedom of expression is narrower in Australia than it is under the constitutions of other jurisdictions, for it does not cover commercial or literary speech;10 on the other hand, the implied freedom shows that a constitutional state must recognize freedom of political expression, unless it is to forfeit its distinctive character.

Freedom of expression as a constitutional right must be distinguished from the freedom as a human right, guaranteed by international conventions such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights (ECHR), or the Inter-American Convention on Human Rights (IACHR). Both the ECHR and the IACHR have exercised an enormous influence on the development of the right to freedom of expression (and other rights) in the legal systems of the states which are parties to these conventions. For example, contempt of court law in the United Kingdom, which had significantly curtailed the freedom of the media to publish material prejudicing legal proceedings, was made less restrictive following the seminal ruling of the Strasbourg Court in the Sunday Times case.11 But national courts rarely treat the decisions of international courts as decisive. They must interpret and apply constitutional freedom of expression provisions in accordance with the text of (p. 893) the constitution as a whole, distinctive national principles of interpretation, and relevant precedents within their own jurisdiction, as well as the decisions of international courts and tribunals.

Constitutional freedom of expression guarantees must of course be distinguished from both statutory rights to freedom of speech and any speech and press freedoms recognized by ordinary civil law or by the common law in Anglo-American legal systems. The difference is that constitutional rights may trump limits imposed on the exercise of the freedoms by ordinary legislation or by competing civil or common law rights, say, to reputation or privacy;12 statutory free speech rights in contrast have no more weight than these conflicting rights or interests. However, sometimes the freedoms conferred by legislation or other texts may be treated as constitutional, even if they are not set out formally in the constitution itself. This is the position in Sweden, where freedom of the press,13 and freedom of expression by other means,14 have been conferred by fundamental laws, which cannot be amended by the usual legislative process, and in France, where ordinary legislation must comply with the Declaration of the Rights of Man and of the Citizen (1789).15

The status of the right to the freedom of expression is less clear in the United Kingdom. It is now protected by the Human Rights Act 1998 (HRA), incorporating (most of) the rights in the ECHR; UK courts must interpret legislation as far as possible in conformity with the right to freedom of expression,16 but they do not have authority to invalidate a statute, even if it plainly infringes the right.17 Even before the enactment of the HRA, the House of Lords (now the Supreme Court) had sometimes characterized the right to freedom of expression as ‘constitutional’,18 but it is doubtful whether it should really be accorded that status.

However, one final introductory point is very clear. There is no difference between ‘freedom of expression’ and ‘freedom of speech’. Common law systems have tended to use the latter term, while civil law systems use the former. An argument can be made that ‘freedom of expression’ has a broader meaning, in that it includes not only verbal and written communications, but the arts, for example dramatic performances, painting, and sculpture. Courts in common law jurisdictions have, however, been prepared in appropriate cases to hold that ‘freedom of speech’ covers all forms of communication, not just the written and spoken word. Nevertheless, the scope of the freedom, whether of expression or of speech, remains a difficult issue for the courts.19

II.  Constitutional Freedom of Expression Clauses

The best known free speech clause is the First Amendment to the US Constitution. It is also one of the shortest:

(p. 894) Congress shall make no law … abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

But even this apparently simple provision bristles with difficulties. Among them are the following: Does the clause limit the competence of the executive and the states, as well as that of the federal Congress? What does ‘abridging’ mean, and how does the free press limb of the clause relate to ‘the freedom of speech’? Many of these problems have been resolved by the Supreme Court, although it has not provided a conclusive answer to all of them. In particular, it remains unclear whether the media enjoys greater rights under the free press limb than those conferred on individuals by the First Amendment.

The freedom of expression provisions in modern post-war constitutions are typically much more detailed. The German Basic Law of 1949 is a good example. Article 5(1) confers on everyone ‘the right freely to express and disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources.’ The provision specifically guarantees press, broadcasting, and cinema freedom, and it also stipulates: ‘There shall be no censorship.’ But these rights may be limited by general laws and by provisions to protect young people, and in order to protect the right to personal honour.20 Only freedom of the arts and science is more or less absolutely protected.21

The German provisions illustrate a number of features of modern free expression provisions. By conferring a freedom to receive and impart information, as well as a general freedom of expression, they recognize that the audience, as well as the speaker, may claim constitutional free speech rights.22 Usually press freedom and that of the other media are guaranteed by these provisions.23 Sometimes freedom of assembly, academic freedom, and freedom of literary, artistic, or scientific creation are additionally covered by the freedom of expression clause,24 though they are often covered by separate constitutional provisions. Freedom of expression is regarded in Hungary as a ‘mother’ right, from which these other freedoms are derived.25 An explicit ban on censorship is very common: for instance, the Spanish Constitution provides that the exercise of the rights conferred by the freedom of expression clause ‘cannot be restricted by any type of prior censorship’.26 But the scope of this ban is rarely, if ever, spelt out, leaving the courts to decide whether it applies to court orders prohibiting a publication, as well as to administrative censorship.

While the First Amendment appears to provide an absolute right to freedom of speech, other constitutions, such as Article 5 of the German Basic Law, confer a qualified freedom: the exercise of the right to freedom of expression may be restricted by general laws or in order to safeguard other rights or interests. But a constitution may also limit the circumstances in which freedom of expression may be restricted. The Canadian Charter, for example, provides (p. 895) that rights, including the freedom of expression conferred by section 2(b), are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’27 The state may not, therefore, have unfettered discretion to restrict the exercise of freedom of expression whenever it thinks this course appropriate; there is a presumption in favour of freedom of expression.

The constitution may itself provide that the freedom does not cover certain types of expression. The South Africa Constitution,28 following the International Covenant on Civil and Political Rights, provides that freedom of expression does not extend to war propaganda, incitement of imminent violence, or hate speech ‘based on race, ethnicity, gender or religion’, which amounts to incitement of harm. It cannot even be argued that these types of speech are covered by the right to freedom of expression. Other types of speech under this Constitution, for instance child pornography, are covered, though they are of little value and the state will find it easy to justify their proscription.29

III.  Interpreting Freedom of Expression Clauses

1.  The Scope of Freedom of Expression

Often the crucial question in a particular case is whether a communication is covered by the freedom of expression clause. If it is not, in the absence of other constitutional arguments, its dissemination can be restricted or banned; on the other hand, if it is covered, it is for the state to show that any restriction on its dissemination is compatible with freedom of expression. Courts generally take a broad view of the scope of the freedom. A particularly generous approach is taken by the Supreme Court of Canada which has held that section 2(b) of the Charter covers any form of activity attempting to convey a meaning. Only violent acts are excluded, even if, as perhaps in the case of terrorist atrocities, one of their objectives is to convey a political message. It is immaterial whether the speech is valuable or not; even tasteless and trivial discourse is covered.30 But it is doubtful whether the Supreme Court would hold that the Canadian Charter covers expression such as perjury, bribes, and contractual promises. Although these types of expression amount to ‘speech’ or ‘expression’ in the dictionary meaning of these words, it is generally agreed that they are not covered by freedom of expression provisions. None of the reasons for recognizing a constitutional right to freedom of expression justifies their coverage; a bribe or false statement in court, for example, does not contribute to public discourse or the search for truth.31

Two questions in particular have presented real difficulties. The first is how the line should be drawn in this context between expression on the one hand, and conduct on the other. The question creates acute difficulties when, for example, a demonstrator engages in an unorthodox form of protest such as desecrating or burning an army registration card or the national flag in protest against government policy,32 or when a nightclub presents nude dancing or live sexual activity. On one view these displays amount to conduct which can be regulated without (p. 896) free expression arguments. But they can equally be understood as radical messages communicated by non-traditional means.33 The most sensible approach to this issue is for the court to ask whether a public authority which, say, prohibits nude dancing intended to stop the dissemination of subversive ideas, rather than to prevent the concentration in a city centre of noisy night clubs. If the former was its aim, then the measure engages freedom of expression and should be subject to constitutional scrutiny.34 This principle has been applied in the United States and Canada to subject limits on election expenditure to scrutiny to ensure that they do not interfere disproportionately with freedom of expression during election campaigns of political parties, candidates, and their supporters.35

The second issue is more general. It is whether the freedom of expression provision covers all types of speech, or is confined to communications on social and political issues, often described as ‘political speech’. The question has arisen most frequently with regard to commercial advertising and sexually explicit literature and art. For a court which adopts the approach of the Supreme Court of Canada to the freedom, there is no difficulty; freedom of expression naturally covers commercial and sexually explicit speech, though it may be easy for the state to justify the imposition of restrictions on its availability or particular content limits, for example on tobacco or alcohol advertising. The US Supreme Court used to take the view that commercial advertising, and some other kinds of speech, notably libel, fell wholly outside the scope of the First Amendment.36 That is no longer its position. The First Amendment now covers the publication of defamatory allegations,37 whether they concern public officials and figures or ordinary people. Its scope has also been extended to cover non-fraudulent commercial speech and advertising.38 Moreover, ‘obscenity’ has been defined restrictively; only a very narrow category of sexually explicit material, lacking any serious literary, artistic, or other value, may be proscribed without infringing the First Amendment.39

Similar developments have occurred in other jurisdictions.40 In Germany, for example, the coverage of Article 5 has been extended to the publication of defamatory allegations, at least (p. 897) when they raise matters of public concern;41 the Federal Constitutional Court has also held that freedom of expression covers commercial advertisements, insofar as they contribute to the formation of public opinion, for example on environmental or health issues,42 and pornography, unless it is addressed to children.43 Unless the text of the freedom of expression provision, as in the case of South Africa, explicitly excludes particular categories of speech from its coverage, courts prefer to hold that it extends to all types of expression.

These developments are a little surprising. If the principal purpose of the freedom of expression guarantee is to protect uninhibited political discourse, it is unclear why its coverage should have been extended to types of speech, such as commercial advertising and pornography, which do not usually involve any discussion of political or social matters.44 One explanation is that it may be difficult to draw a sharp line between political speech on the one hand, and commercial or sexually explicit speech on the other. The author or publisher of pornography may argue, moreover, that he could not communicate libertarian ideas about sexual relationships unless he is free to illustrate his ideas with explicit pictures. The difficulty is most acute with regard to defamatory allegations, often impossible to divorce from their context which may be a matter of clear public concern. The seminal US case, New York Times v Sullivan, for example, involved the publication of a newspaper advertisement protesting against the harsh treatment of civil rights demonstrators, for which, it was suggested, the commissioner of police was responsible.45 Courts are rightly reluctant to trust the capacity of government to distinguish between speech which cannot lawfully be restricted and speech which can be regulated. This reluctance is particularly marked in the United States, where the Supreme Court will rarely uphold legislation which imposes ‘content-based’ restrictions on speech—that is, restrictions which allow the expression of some views, but not others, or which allow the discussion of only a restricted range of topics or confer privileges on particular speakers.

2.  The Character of Freedom of Expression

Constitutional courts must sometimes determine whether the right to freedom of expression confers only a liberty to speak, free from interference by the state and public authorities, or whether in some contexts it also confers on individuals positive claim-rights to communicate their ideas or to disseminate, or acquire, information. Positive claims may be made in a variety of situations. It can be argued, for instance, that individuals should have rights to disseminate their views in the press or on television, or that the state should subsidize artistic expression.46 There are powerful arguments for recognizing some positive rights; otherwise only a few people, in particular the wealthy and the articulate, will enjoy effective opportunities to express their views to the public. But courts are reluctant to uphold wide constitutional positive rights, for their recognition would compel government, or a regulatory authority, to frame appropriate rules to determine when the rights should be respected, for example when a political party (p. 898) or pressure group should have a right to broadcast.47 That difficulty does not arise, of course, if a government chooses to enact legislation conferring access rights, say, to use public or private property for speech or to acquire information from public authorities.48

Courts most commonly recognize constitutional positive freedom of expression rights in two categories of case. Claims to demonstrate on the streets or in other public places are often upheld, particularly if there is evidence that the authority had discriminated against the applicant when it refused permission to hold the meeting.49 As Chief Justice Lamer said in the Committee for the Commonwealth of Canada case, ‘the freedom of expression cannot be exercised in a vacuum … and it necessarily implies the use of physical space in order to meet its underlying objectives.’50 Moreover, freedom of expression arguments are often strengthened by a specific provision in the constitution for freedom of assembly or public meeting. Courts have also upheld constitutional freedom of expression rights for the media and for the general public to attend legal proceedings, even when the parties would prefer them to be held in private.51 There seems no logical reason why the courts should be prepared to uphold positive rights in these cases, but not in others. The best explanation is probably that these rights have traditionally been respected in liberal democratic societies, so it is easy for courts to recognize them when their existence or scope is contested.52

There is less uniformity in another important context: the treatment of the right of reply to media attacks. There are powerful freedom of expression arguments for recognition of this right; it enables individuals to communicate their version of events, when they feel they have been misrepresented by the media, and it gives readers and listeners access to both sides of a story. But the US Supreme Court has firmly rejected a statutory right of reply as incompatible with press freedom, in particular with the freedom of editors to determine the composition of their newspaper.53 So it is inconceivable that it would recognize a constitutional right to reply under the First Amendment, and it is unlikely that the UK Supreme Court or other Commonwealth courts would take that step. Rights of reply are generally provided in these jurisdictions by informal press codes, but are not legally enforceable.

On the other hand, an explicit constitutional right to reply and make corrections to inaccurate media stories is provided by some constitutions,54 while in other jurisdictions courts have upheld statutory provisions for such rights as protecting personality rights of the individuals (p. 899) concerned and promoting the freedom of expression of readers to hear both sides of a story.55 Indeed, a reply right may be considered necessary to safeguard personality rights which must be respected under the constitution.56 (However, the French Law of the Press of 1881 provides a very wide right of reply to articles naming or referring to a particular individual, irrespective whether they amounted to an infringement of the individual’s personality rights.) The ‘right of reply’ controversy, therefore, nicely brings out many difficulties in interpreting freedom of expression: whether the right is only a liberty or may also confer positive rights, and the relationship of freedom of expression for individuals to the freedom of the institutional press and editorial freedom. To these difficulties are added, at least in some constitutions, the balance between press freedom on the one hand, and on the other the rights of individuals to human dignity and the free development of their personality.

Freedom of expression may entail a positive right to acquire information from the state and public authorities. Without adequate information, citizens, it is argued, cannot properly exercise their freedom of expression to contribute to debate on political issues.57 Moreover, the press and other media will be unable to discharge their role as ‘watchdogs’ on behalf of the public, unless they have access to information from government and other official sources. These are strong arguments, but they do not show that freedom of information should be treated as an aspect of freedom of expression. The arguments prove too much, for they would also show that the law should regard rights to a good education and to travel as aspects of freedom of expression. Moreover, it seems odd to recognize freedom of expression rights in the absence of a willing speaker. Freedom of information involves rights to acquire information from authorities reluctant to supply it.

As has already been pointed out,58 freedom of expression clauses frequently provide a right to receive information, as well as a right to disseminate it. But recipient rights have ample content without bringing freedom of information within their protection. A recipient may be in a better position than the disseminator of the information to assert freedom of expression, for example when the latter is physically outside the jurisdiction and cannot easily claim the constitutional right.59 In these circumstances, the recipient right is a freedom to receive information from a willing speaker, or as the German Basic Law puts it, from ‘generally available sources’. It would be another step to hold that recipients have constitutional rights to acquire information from sources which do not want to provide it. US courts have declined to uphold First Amendment rights to acquire information; they draw a distinction between the freedom to communicate information which the media or other publisher has already acquired, and the freedom to gather information.60 Freedom of speech covers the former, but not the latter.

These points are not made to establish that freedom of information is misconceived. The argument is only that the freedom should be conferred by statute, as has been done in many (p. 900) countries,61 rather than treated as an aspect of freedom of expression. However, whatever the merits of these points, parties to the ECHR and to the IACHR may now be impelled to recognize freedom of information as implicit in the Convention rights to freedom of expression. For the Inter-American Court of Human Rights,62 and more recently the European Court of Human Rights,63 have recognized a right of access to state-held information as falling under the freedom of expression provisions in the Conventions. The Inter-American Court made plain that states have a positive obligation to provide the information or justify the refusal by reference to one of the exceptions allowed by Article 13 of the IACHR.64

3.  The Censorship Ban

Some freedom of expression provisions explicitly ban censorship and press licensing.65 That is because authoritarian regimes generally institute strict systems for the prior scrutiny of books, newspapers, and other printed matter to ensure that they do not contain subversive material or other disapproved content. The censorship ban is intended to outlaw this practice. It is unclear, however, whether it should be interpreted to cover all types of censorship, for example the censorship of exceptionally violent or sexually explicit films and videos, and whether it applies to injunctions and other court orders restraining the publication, say, of official or commercial secrets and confidential information.

The best answer to both these questions depends perhaps on the reasons for the special hostility to censorship or systems of ‘prior restraint’, the term often used in Anglo-American legal systems. On one view the vice of prior restraints is that they prevent a publication from seeing the light of day, so the public never has an opportunity to comment on it. As a prominent American constitutional scholar put it, ‘[A] criminal statute chills, prior restraint freezes.’66 But that is too simple. The threat or fear of subsequent criminal prosecutions or civil actions may have as great an impact on the willingness of publishers to distribute radical and challenging ideas as any censorship system. Indeed, film distributors may prefer the security of a prior restraint system with which they are familiar; they know that if their film passes scrutiny by a censorship board, there is little chance it will face prosecution. The real drawback of censorship systems is that they are operated by administrative boards, generally applying unclear standards and without adequate procedural safeguards for the publisher or film distributor to explain his work. Moreover, censorship authorities are probably predisposed to refuse a permit from time to time, for otherwise there would be no point to their existence.67

On this perspective, systems of film censorship may be unobjectionable, at least if they provide adequate procedural safeguards for film distributors. This is the position in the United (p. 901) States, where the Supreme Court has declined to hold them unconstitutional as such,68 but has imposed strict procedural safeguards: it is for the censor to show that a film did not meet clear standards spelt out in legislation, and a final order banning distribution should only be made by a court after a prompt adversary hearing at which the distributor could oppose its grant.69 Other courts have gone further. An Ontario court held that the system of censorship in that province was incompatible with the right to freedom of expression in the Charter, as the standards with which a film must comply for its release were stricter than the grounds on which a criminal prosecution could be brought. A comprehensive system of film censorship could not be sustained, although a more limited scheme to safeguard children would be compatible with freedom of expression.70 It is hard to see why a comprehensive film censorship system should be regarded as compatible with freedom of expression, when comparable controls over theatre have been abandoned in liberal democracies. On the other hand, it has been common for broadcasting programmes to be subject to some degree of prior scrutiny by a special regulatory authority, while governments may retain legal authority to stop particular material being broadcast.71

The US Supreme Court and European courts have taken different positions on court injunctions. The Supreme Court will rarely uphold a judicial prior restraint, even in cases involving the publication of material likely to prejudice the outcome of pending or contemporaneous legal proceedings, where the defendant’s constitutional right to a fair trial might be endangered.72 In the famous Pentagon Papers case,73 it declined to continue a temporary order stopping the publication in two newspapers of confidential State Department documents relating to the involvement of the United States in the Vietnam War. Justices Black and Douglas would have declined to uphold a prior restraint in any circumstances, but other members of the 6:3 majority would have been prepared to uphold one if the government could show that publication would almost certainly result in ‘direct, immediate and irreparable damage to our Nation or its people’.74 A US court will grant an injunction to stop a publication only in very exceptional circumstances.75

The general understanding of the censorship ban in European jurisdictions is that it applies only to administrative censorship systems, and not to court orders preventing a publication. That is certainly the position in Germany, where the issue has been considered by the Federal Constitutional Court on a number of occasions; it has explained that the Zensurverbot applied only to systems requiring the submission of material to authorities for scrutiny prior to publication.76 It did not cover orders by a court for which an application must be made. In England (p. 902) and other countries injunctions are frequently granted to stop the publication of material likely to imperil commercial confidentiality, personal privacy, or state secrecy, or to endanger the fairness of legal proceedings. There is nothing objectionable in this practice, provided the media or other defendant has an opportunity to argue that it would be wrong to grant an injunction. It is imperative to ensure that these procedural rights are safeguarded.77 The European Court of Human Rights has rejected the argument that prior restraints are as such incompatible with the right to freedom of expression, though it has emphasized that they should be carefully scrutinized,78 and further that administrative orders must be liable to prompt judicial review.79 Court injunctions do not carry the same dangers for freedom of expression as systems of administrative scrutiny, for courts do, or should, not suffer from any prejudice in favour of censorship, they apply the law, rather than exercise administrative discretion, and they should provide both parties with adequate opportunities to argue their case.

IV.  Balancing Freedom of Expression and Other Interests

In practice the most important issue for courts in free expression cases is how the right should be balanced against other interests. Their approach may depend on the character of the competing interest. If it is national security, public order, or some other general interest, they may require the state to show that the interest cannot be safeguarded without a constraint, or even a ban, on exercise of the right to freedom of expression and that this restraint is not excessive or disproportionate in the circumstances. In these cases there is a presumption in favour of the right. Courts sometimes defer to the government’s assessment that, say, national security would be imperilled if the speaker were allowed to disseminate his ideas.80 Such deference legitimates, perhaps even encourages, the suppression of free expression and associated freedoms, particularly at times of tension, so it is much better for courts to insist there is evidence of a link between the spread of the (extreme) political speech and the insurrection or disorder thought likely to occur as a result. The latter approach is evidenced by the important decision of the US Supreme Court in Brandenburg v Ohio,81 when it required the state to show that incitement was likely to lead to imminent violence or other lawless action before it could penalize its dissemination.

Courts must adopt a different approach when they balance freedom of expression against another right, particularly if that other right is also guaranteed by the constitution. They cannot rely on a presumption in favour of freedom of expression, for the other right, for example to privacy or to a fair trial, may equally be entitled to constitutional protection. So courts must then consider the weight of the rival claims, to freedom of expression on the one hand, and to privacy, reputation, or intellectual property rights on the other, if they are to strike a fair balance between them. This entails asking questions about the value, say, of the particular communication or the degree of intrusion on the claimant’s privacy. But detailed weighing of all (p. 903) the factors complicates the judicial process and makes the end result unpredictable, so some courts prefer to formulate clear rules, or guidelines, on the basis of which these conflicting claims can be resolved relatively easily.82

It is impossible here to do justice to all areas of law in which courts balance freedom of expression (and associated rights such as freedom of assembly or academic freedom) against conflicting public interests or private rights. Some remarks should be made about three topics where balancing is particularly difficult and where national legislatures and courts have adopted radically different solutions: hate speech, libel and the invasion of privacy, and pornography.

1.  Hate Speech

Many liberal democracies proscribe the dissemination of hate speech: communications inciting hatred against social groups defined by reference to their race, religion, or ethnic or national origins.83 Some hate speech laws also protect sexual minorities and the physically disabled.84 In many European states and in Israel, Holocaust denial is explicitly proscribed, while in others, notably Canada, deniers have been prosecuted under general criminal laws.85 Sharply different views have been taken about the compatibility of these laws with freedom of expression. At one extreme is the position in South Africa, where the Constitution excludes hate speech altogether from the guarantee.86 European constitutional courts and the Supreme Court of Canada have generally upheld the application of hate speech laws. In contrast, courts in the United States have almost always ruled them incompatible with the First Amendment guarantee of freedom of speech. Notably, the Supreme Court in RAV v City of St Paul87 held that the city infringed the guarantee by enacting an ordinance singling out for proscription the expression of hatred ‘on the basis of race, color, creed, religion, or gender’. Either all forms of hate speech must be banned, or none. Racist hate speech must be permitted, as much as speech targeting Democrats or Republicans, or other types of extremist speech.88

The usual perspective in the United States is that hate speech forms part of public discourse; only if racialists and extremists are allowed to express their ideas, can the state justify to them the application of anti-discrimination and other criminal laws regulating their conduct.89 Racists cannot then argue that they have not even been allowed to express their opinions. Another important argument is that of the ‘slippery slope’: once racist and other forms of hate speech are proscribed, it will be difficult to resist the extension of the criminal law to ban the dissemination of, say, radical anarchist or socialist ideas. Defenders of hate speech laws argue (p. 904) that they are needed to preserve community relations and in the long term to prevent a breakdown in law and order. But arguments of this kind are difficult to accept. They are incompatible with general perspectives underlying arguments for free expression, that it is better for a society to debate its underlying tensions and that the state infringes the freedom if it outlaws the dissemination of ideas which the majority dislikes or which are offensive, even insulting, to particular communities.

The proponents of hate speech laws may be on stronger ground when they argue that they protect the constitutional rights of the targeted groups, particularly their equality rights.90 For then the courts must balance the constitutional right to freedom of expression against another constitutional right, which presumptively is of equal weight. In assessing their importance, it can be argued, as Chief Justice Dickson said for the majority of the Canadian Supreme Court in its leading hate speech decision, that racist speech has ‘low value’.91 However, it is unclear how hate speech, unlike the discriminatory denial of, say, housing or education, directly infringes the equality rights of the targeted group. Equality arguments carry little more conviction than the contention that hate speech ‘silences’ members of the targeted community, so infringing their own freedom of expression.

Another dimension of this discussion is, of course, that each country has a distinct historical experience of the dangers of hate speech. On that basis it is understandable that after the apartheid regime the framers of the South African Constitution decided wholly to exclude hate speech from the free expression guarantee. Equally, Holocaust denial laws make sense in countries which have recently experienced Nazi and other anti-Semitic regimes,92 or in which there is good reason to believe that, left unchecked, the fabrications of revisionist historians will be widely accepted. But with the passage of time, it would surely be wrong for the state to determine historical truth; a law banning the publication of ‘revisionist’ histories of the atrocities committed by religious communities, say, during the Crusades or the Thirty Years War, would infringe freedom of expression, however insulting these accounts are to their members now.

2.  Libel and the Infringement of Privacy

In New York Times v Sullivan,93 the Supreme Court held for the first time that libel actions were not immune from scrutiny under the First Amendment. Like prosecutions for seditious libel, a civil action for libel damages could limit freedom of political expression, not only for the defendant in the particular action, but for other writers deterred from publishing out of fear of legal proceedings. The Court fashioned a broad rule under which libel actions brought by a public official could succeed only if he proved that the allegations were published with the knowledge of their falsity or with reckless indifference to their truth. The principle was extended to cover actions brought by any ‘public figure’, for example an army commander or sports personality, while private individuals must show fault if they are to succeed in libel proceedings.94 More controversially, it has applied the same principles to privacy cases, where the (p. 905) public interest in publishing the intimate details of a politician’s or celebrity’s personal life is much weaker than it usually is in defamation actions.95

The advantage of this approach is that it provides some certainty for the press and other media; they know that they can safely publish defamatory allegations about public officials and figures, which they believe to be true, even though it turns out that the stories are inaccurate. The New York Times rule removes the ‘chilling effect’ of libel laws, which deter the press from publishing defamatory allegations it considers to be of public interest about political and other public figures when it is unsure it could prove their truth to the satisfaction of the libel jury. Under the rule an editor does not have to assess the weight of all the facts before deciding it is safe to publish the story; he has only to determine whether the claimant is a public official or figure. The same argument may apply in privacy cases, though in these circumstances the case for application of the New York Times rule is much less persuasive; it is unclear that there is a real public interest in exposing details of even a politician’s private life, unless their conduct interfered with discharge of their public duties.96

On the other hand, the difficulty with New York Times and later Supreme Court decisions is that they give too strong protection to freedom of expression, in particular of the media, at the cost to the individual’s reputation or privacy. After all, a mistaken article might destroy the standing of a minor figure in, say, local government. For this reason, courts in England and other Commonwealth countries, in applying their own constitutional provisions, have rejected the US approach, while giving much more weight than they had under common law to freedom of expression in libel actions. Similarly, the German approach is to weigh all relevant factors before determining whether freedom of expression should trump the individual’s interest in protecting his reputation.97 It adopts the same approach in privacy cases.98 The then House of Lords in England also examined all the facts carefully in these cases, most notably when it awarded Naomi Campbell damages after a tabloid newspaper published a photograph of her leaving a meeting of Narcotics Anonymous where she had been receiving treatment.99

It is certainly right to apply freedom of expression principles to libel and privacy actions. But courts must take equal account of reputation and privacy rights, particularly when they enjoy constitutional protection. (One explanation of the approach in the United States is that reputation and privacy against media disclosures are not constitutional rights, so do not enjoy the same status as freedom of speech and of the press.) There is no good reason to privilege freedom of expression over human dignity, so individuals should be able to secure redress for egregious attacks on their privacy or constant harassment by the media. In this context it is worth emphasizing that most infringements of personal privacy are committed by the media, in particular the tabloid press, which is often ready to claim freedom of expression rights to defend their commercial interests in satisfying the public demand for celebrity gossip.

(p. 906) 3.  Pornography

Courts adopt a number of approaches to pornography—sexually explicit literature, film, and other material. Extreme hard-core pornography may be excluded altogether from the coverage of freedom of expression, on the ground that it is indistinguishable from the provision of sex toys and does not communicate any ideas so as to constitute ‘expression’. This perspective is reflected in the constitutional definition of ‘obscenity’ in the United States; matter which appeals to a prurient interest in sex, is patently offensive, and lacks any serious artistic, political, or other value may be proscribed without the risk of First Amendment challenge.100 There is also no serious freedom of expression argument against bans on the circulation of child pornography when its production involved the participation of young children.

Attempts to control the spread of other types of pornography may, however, run into constitutional difficulties. A government may not justify tight regulation of sexually explicit literature simply on the argument that its consumption is morally wrong or lowers the tone of society; members of the public have a freedom of expression right to determine what they read and look at. The state must point to some specific harm. This might be the increased incidence of rape and other sexual offences, or the psychological damage to children from premature exposure to sexually explicit material. The weakness of these arguments is that it is unclear that the consumption of such material does cause, or even contribute to, these harms. Also controversial is the feminist case that pornography demeans women, and perhaps silences them, so denying them freedom of expression. The Supreme Court of Canada has decided that hard-core material can be proscribed if it degrades women,101 or gays and lesbians.102 The feelings of diminished self-esteem resulting from the dissemination of this material is a harm the state is entitled to prevent without infringing free expression. But US courts have rejected this justification for pornography regulation; it is not the business of the state to determine which views of women are acceptable.103

Even US courts have been sympathetic to regulations concerning the location of sex cinemas and shops, on the ground that their siting in proximity to each other would lead to the development of a red-light district, or if permitted close to a residential area would damage the quality of life and reduce property values.104 It is striking that this type of regulation is regarded as compatible with freedom of expression, even though it plainly discriminates against the provision of one type of material—sexually explicit speech, regarded as expression of low value when balanced against the public interest in the general quality of life in a city or residential area. The same perspective was taken by the House of Lords when it upheld a Belfast City ban on the siting of sex shops in a city centre area.105 This approach is acceptable, given the availability of pornographic material by mail order and now over the internet: such regulation does not have the same impact on freedom of expression as a total ban on the dissemination of sexually explicit material.

(p. 907) V.  Freedom of Expression and the Media

It goes without saying that the mass media—the press and broadcasters—may claim freedom of expression, whether or not they enjoy the protection of a specific right to press or media freedom, often conferred by the same constitutional provision.106 Indeed, in some contexts, notably libel and privacy proceedings, freedom of expression is almost invariably asserted by the media, rather than by individual writers. But the relationship between freedom of expression and media claims is far from straightforward. The media themselves inevitably limit the dissemination of information and ideas when they refuse, say, to publish an individual’s reply to a personal attack they have printed or broadcast, or deny a pressure group the opportunity to communicate its views in an article or television documentary. In these circumstances, the media and the individual may both assert freedom of expression, and courts must decide who has the stronger constitutional claim. It has been pointed out that the approaches of the US and European courts differ with regard to the constitutionality of reply rights.107 The former take the view that press freedom prevails over individual claims, even though that may be to the cost of readers’ understanding of events.

Of course, unregulated press and broadcasters are infinitely preferable to a mass media subservient to government. But sometimes the values underlying freedom of expression—the dissemination of a range of views on political and social issues—justifies media regulation, for example to ensure that they are not controlled by one or two press barons or media corporations. That is the reason why in European countries, and even sometimes in the United States,108 there have been limits on, say, the share of a newspaper or broadcasting market which can be controlled by a single media company. The French Constitutional Council, the Italian Constitutional Court, and the German Federal Constitutional Court have all ruled that media regulation to ensure pluralism is not only permissible, but required by constitutional freedom of expression provisions.109 The freedom does not give the mass media immunity from regulation to prevent oligopolies or to ensure that they transmit news and other serious programmes; moreover, it should never be forgotten that media corporations often claim to defend the freedom and press freedom, when they are really protecting their commercial interests.

Finally, it is important to consider whether the internet affects this perspective. Its advent certainly increases the effective opportunities for all individuals to communicate their views—often anonymously—to other members of the public. Further, some traditional arguments for broadcasting regulation—the scarcity of frequencies and the unique power of television—hardly apply to the new electronic media.110 But it does not follow that the internet undermines the case for mass media regulation. For the internet has not yet replaced, and may never replace, the print and broadcasting media altogether, though it may have contributed to the significant recent decline in newspaper readership. The point is that the internet is used most frequently by individuals to communicate their views to other individuals, rather than to a mass audience; its role is for the most part supplementary to that of the traditional press and broadcasting media. If there are good free expression arguments for regulation of the mass media, in order to ensure that they provide a forum for lively political debate, they are unaffected by the arrival of the new electronic media.

(p. 908) Bibliography

  • Eric Barendt, Freedom of Speech (2007)
  • David Currie, The Constitution of the Federal Republic of Germany (1994)
  • Edward Eberle, Dignity and Liberty: Constitutional Visions in Germany and the United States (2002)
  • Kent Greenawalt, Speech, Crime and the Uses of Language (1989)
  • Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (2009)
  • Wolfgang Hoffman-Riem, Kommunikationsfreiheiten (2002)
  • Richard Moon, The Constitutional Protection of Freedom of Expression (2000)
  • Jean Morange, La liberté d’expression (2009)
  • Alessandro Pace and Michela Manetti, La Libertà di manifestazione del proprio pensiero (2006)
  • Robert Post, ‘Racist Speech, Democracy, and the First Amendment’ (1991) 32 William and Mary Law Review 267
  • Robert Post, ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v Falwell’ (1990) 103 Harvard Law Review 601
  • Michel Rosenfeld, ‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ (2003) 24 Cardozo Law Review 1523
  • Fred Schauer, ‘Categories and the First Amendment: A Play in Three Acts’ (1981) 34 Vanderbilt Law Review 265
  • Roger Shiner, Freedom of Commercial Expression (2003)
  • Geoffrey Stone, ‘Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions’ (1978) 46 University of Chicago Law Review 81
  • George Williams, Human Rights under the Australian Constitution (2002)


1  Lüth case, BVerfGE 7, 198, 208. The translation of this passage is taken from David P. Currie, The Constitution of the Federal Republic of Germany (1994), 175. On constitutional courts more generally, see Chapter 38.

2  302 US 319, 327 (1937).

3  For this argument, see Robert C. Post, ‘Racist Speech, Democracy, and the First Amendment’ (1991) 32 William and Mary Law Review 267, 279–90.

4  Handyside v UK (1976) 1 EHRR 737, para 49 (European Court of Human Rights).

5  ‘Of the Liberty of Thought and Discussion’ in On Liberty and Other Essays (1991).

6  Abrams v US 250 US 616, 630–1 (1919).

7  Brandeis J in Whitney v California 274 US 357, 375–8 (1927).

8  Commonwealth of Australia Act 1900 (UK statute). For commentary on freedom of expression in Australia, see George Williams, Human Rights under the Australian Constitution (2002), ch 7.

9  Among the leading decisions are Australian Capital Television v Commonwealth (1992) 177 CLR 106 (invalidating restrictions on election advertising) and Coleman v Power (2004) 220 CLR 1 (holding that law prohibiting insulting speech must be interpreted in conformity with freedom of political communication).

10  For further discussion of the scope of freedom of expression, see Section III.2 below.

11  Sunday Times v UK (1979) 2 EHRR 245.

12  But see Section IV.2 below for conflicts between freedom of expression and constitutional rights.

13  The original Freedom of the Press Act was enacted in 1766 and is the oldest general freedom of expression clause in the world: see now Freedom of the Press Act 1949.

14  Fundamental Law on Freedom of Expression 1991.

15  This principle was established by the Constitutional Council in Decision 71–44 DC of 16 July 1971, and has frequently been applied to ensure that bills comply with the free communication of thought and opinion recognized by Art 11 of the Declaration.

16  HRA 1998, s 3.

17  They make a declaration that legislation is incompatible with the Convention (HRA 1998, s 4), but the government is not required by UK law to cure the incompatibility.

18  See in particular, the speech of Lord Steyn in Reynolds v Times Newspapers [2001] 2 AC 127, 207.

19  See Section III.1 below.

20  Basic Law, Art 5(2).

21  Ibid Art 5(3) which also protects freedom of research and teaching. Teaching freedom does not however absolve professors and teachers from loyalty to the constitution.

22  eg see Spanish Constitution, Art 20(1)(d); Hungarian Constitution, Art 61, para (1); South Africa Federal (SA) Constitution, s 16(1)(b).

23  The German Basic Law is unusual in singling out ‘freedom of reporting by means of broadcasts and films’. The Canadian Charter of Rights and Freedoms (1982) and the SA Constitution refer to the freedom of ‘other media’ in addition to press freedom.

24  Spanish Constitution, Art 20(1)(b) and (c); SA Constitution, s 16(1)(c) and (d).

25  See the decision of the Constitutional Court in Case 30/1992 (V 26) AB.

26  Article 20(2). Also see Japanese Constitution, Art 21. The post-war Constitution of Italy (1948) provides that the press may not be subject to licensing or censorship: Art 21, para 2.

27  Charter, s 1. For a similar provision see SA Constitution, s 36.

28  Section 16(2).

29  De Reuck v Director of Public Prosecutions 2004 (1) SA 406 (Constitutional Court SA).

30  Irwin Toy v A-G of Quebec [1989] 1 SCR 927. For discussion of the Canadian approach, see Richard Moon, The Constitutional Protection of Freedom of Expression (2000) 33–5.

31  The best discussion of these issues is in Kent Greenawalt, Speech, Crime and the Uses of Language (1989) ch 2.

32  For US cases, see United States v O’Brien 391 US 367 (1968) and Texas v Johnson 491 US 397 (1989).

33  Courts often treat nude dancing as low value expression, so regulation can easily be justified: Erie v Pap’s AM 527 US 277 (2000), and Philips v DPP, Witwatersrand Local Division 2003 (3) SA 345 (Constitutional Court SA).

34  The Court of Appeal in England has taken this approach, holding that a ban on the entry into the UK of an extremist preacher engaged freedom of expression: R (Farrakhan) v Secretary of State for the Home Department [2002] 4 All ER 289.

35  Among the leading cases in this controversial area of free speech law are Buckley v Valeo 424 US 1 (1976) and A-G of Canada v Harper (2004) 239 DLR (4th) 193. In the latter case, the Supreme Court of Canada upheld limits on advertising expenditure by individuals, as a proportionate measure to ensure electoral fairness. In contrast, in Buckley and many later cases the US Supreme Court has dismissed this justification for restrictions on election expenditure.

36  See the statement of principle in Chaplinsky v New Hampshire 315 US 568 (1942) (some limited classes of speech such as libel, obscenity, and insulting or ‘fighting’ words do not raise constitutional problems) and Valentine v Chrestensen 316 US 52 (1942) (ban on distribution of commercial advertising did not raise freedom of speech issues).

37  See the landmark decision of the Supreme Court in New York Times v Sullivan 376 US 254 (1964), more fully discussed in Section IV.2 below.

38  Commercial speech was first fully brought within the First Amendment in Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748 (1976).

39  The leading modern obscenity case is Miller v California 413 US 15 (1973).

40  The European Court of Human Rights has reviewed the compatibility of state libel laws with the ECHR guarantee of freedom of expression in a number of cases, notably Lingens v Austria (1986) 8 EHRR 407, and has held that commercial speech is covered by the guarantee: Markt Intern & Beerman v Germany (1990) 12 EHRR 161.

41  See Flugblatt case, BVerfGE 43, 130 (1976), and the Strauss ‘coerced democrat’ case, BVerfGE 82, 272 (1990).

42  BVerfGE 102, 347 (2001).

43  BverfGE 30, 337 (1971) and Mutzenbacher case, BVerfGE 130 (1990).

44  For a classic statement of this view, see Robert Bork, ‘Neutral Principles and Some First Amendment Problems’ (1971) 47 Indiana Law Journal 1.

45  See n 37 above.

46  For a discussion of the range of circumstances in which such claims may be made and the difficulties in upholding them, see Eric Barendt, Freedom of Speech (2007), 100–8.

47  See the Supreme Court denial of a First Amendment right to compel a broadcaster to transmit a political advertisement in Columbia Broadcasting System v Democratic National Committee 412 US 94 (1973) and the German Administrative Court rejection of a claim by a social welfare recipient for state payment of his travel costs to take part in a demonstration: BVerwGE 72, 113 (1985).

48  For UK legislation requiring universities to permit visiting speakers (and members of their staff and students) to speak freely within the law on their campuses, see Education (No 2) Act 1986, s 43, discussed by Barendt (n 46), 501.

49  eg decisions of the US Supreme Court in Hague v CIO 307 US 496 (1939), Cox v Louisiana 379 US 536 (1965), and Chicago Police Dept v Mosley 408 US 92 (1972), and of the Supreme Court of Canada in Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139.

50  See n 49 above, 155, quoted with approval by Lord Hutton in a leading case in England, DPP v Jones [1999] 2 AC 240, 288.

51  Edmonton Journal v A-G of Alberta [1989] 2 SCR 1326 (Supreme Court of Canada); BVerfGE 50, 234 (1979) (German Federal Constitutional Court).

52  See the judgments of Burger CJ and Blackmun J in Richmond Newspapers v Virginia 448 US 555 (1980).

53  Miami Herald Publishing Co v Tornillo 418 US 241 (1974).

54  See eg Constitution of Turkey, Art 32 and Constitution of Portugal, Art 37(4). For commentary on these and other provisions, see Kyu Ho Youm, ‘The Right of Reply and Freedom of the Press: An International and Comparative Perspective’ (2008) 76 George Washington Law Review 1017.

55  See the decisions of the German Federal Constitutional Court, BVerfGE 97, 125 (1998), and the Hungarian Constitutional Court, 57/2001 (XII.5) AB. For commentary on the latter, see András Koltay, ‘The Development of Freedom of the Media in a Newborn Democracy: The Hungarian Perspective’ (2010) 2(1) Journal of Media Law 25, 37–41.

56  Stephen Gardbaum, ‘A Reply to “The Right of Reply”’ (2008) 76 George Washington Law Review 1065, 1065–6.

57  Wouter Hins and Dirk Voorhoof, ‘Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights’ (2007) 3 European Constitutional Law Review 114.

58  Section II above.

59  See the German cases, BVerfGE 27, 71 (1969), where the recipient challenged the confiscation of literature he had imported from the former German Democratic Republic, and BVerfGE 90, 27 (1994), when Turkish immigrants asserted a right to receive satellite television programmes from Turkey.

60  Houchins v KQED 438 US 1 (1978).

61  eg Freedom of Information Act 1966 (USA); Freedom of information Act 2000 (UK).

62  Marcel Claude Reyes v Chile, judgment of 19 September 2006, on which see Eduardo Andrés Bertoni, ‘The Inter-American Court of Human Rights and the European Court of Human Rights: A Dialogue on Freedom of Expression Standards [2009] EHRLR 332, 347–8.

63  Társaság a Szabadságjogokėrt v Hungary, Decision of 14 April 2009; Kenedi v Hungary (2009) 27 BHRC 335. It is unclear whether these rulings will be followed in later cases, since the state conceded it had infringed freedom of expression by denying access to official documents, and the European Court departed from earlier decisions in which it had refused to hold that access to information was an aspect of freedom of expression: Leander v Sweden (1987) 9 EHRR 433 and Guerra v Italy (1998) 26 EHRR 357.

64  See n 62 above, para 77.

65  See text accompanying n 26 above.

66  Alexander Bickel, The Morality of Consent (1975), 61.

67  All these arguments are deployed more fully in Barendt (n 46), 118–24.

68  Times Film v Chicago 365 US 43 (1965).

69  Freedman v Maryland 380 US 51 (1965).

70  R v Glad Day Bookshops Inc (2004) 239 DLR (4th) 119. The Inter-American Court of Human Rights has held the Chile censorship system under which all films had to be submitted for scrutiny before release incompatible with IACHR, Art 13(4), under which ‘public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence’: The Last Temptation of Christ, judgment of 5 February 2001, Series C, no 73.

71  See the UK Communications Act 2003, s 336. An earlier provision was upheld by the House of Lords as compatible with freedom of expression in R v Home Secretary, ex p Brind [1991] AC 696. The ECHR, Art 10(1) in its third sentence provides: ‘This Article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.’

72  Nebraska Press Association v Stuart 427 US 539 (1976).

73  New York Times v US 403 US 713 (1971).

74  Ibid, 730 per Stewart J, with whom White J concurred.

75  In US v Progressive Inc 467 F Supp 990 (1979) a District Court granted a temporary injunction to stop publication of an article describing the manufacture of the H-bomb.

76  BVerfGE 33, 52 (1972).

77  See the UK HRA 1998, s 12(2) requiring that defendants should be notified of the application for an interlocutory order, unless there are compelling reasons why this should not be done.

78  Observer and Guardian v UK (1992) 14 EHRR 153, 191.

79  Association Ekin v France (2002) 35 EHRR 1207.

80  See the much criticized decision of the US Supreme Court in US v Dennis 341 US 494 (1951), reached during the McCarthy period when there was much nervousness at the possibility of a Communist insurrection.

81  395 US 444 (1969).

82  See Section IV.2 below for further consideration of the merits of factual and rule-based balancing in the context of libel and privacy claims.

83  For comparative treatment of hate speech laws, see Michel Rosenfeld, ‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ (2003) 24 Cardozo Law Review 1523 and Ivan Hare and James Weinstein (ed), Extreme Speech and Democracy (2009).

84  See the essays by Eric Heinze and Pascal Mbongo in Hare and Weinstein (n 83), 182 and 221 respectively. On issues of gender, see Chapter 19.

85  In R v Zundel [1992] 2 SCR 731 a bare majority of the Supreme Court of Canada held the application of a law penalizing the dissemination of false news to a Holocaust denier a disproportionate restriction on freedom of expression.

86  See n 28 above.

87  505 US 377 (1992).

88  See James Weinstein, ‘An Overview of American Free Speech Doctrine and its Application to Extreme Speech’ in Hare and Weinstein (n 83), 81, 85–8.

89  See Post (n 3) and Ronald Dworkin, Foreword to Hare and Weinstein (n 83), vii.

90  Kathleen Mahoney, ‘Hate Speech, Equality, and the State of Canadian Law’ (2009) 44 Wake Forest Law Review 321.

91  R v Keegstra [1990] 3 SCR 697, 760.

92  In the famous Auschwitz lie case, the German ban on Holocaust denial was upheld against a freedom of expression challenge: BVerfGE 90, 241 (1994), discussed by Dieter Grimm, ‘The Holocaust Denial Decision of the Federal Constitutional Court of Germany’ in Hare and Weinstein (n 83), 557.

93  376 US 254 (1964).

94  The leading cases are Curtis Publishing Co v Butts 388 US 130 (1967) (public figures) and Gertz v Robert Welch 418 US 323 (1974) (private individuals).

95  Among the leading decisions are Time v Hill 385 US 374 (1967) and Bartnicki v Vopper 532 US 514 (2001). On privacy more generally, see Chapter 46.

96  See the argument in Melville Nimmer’s classic article, ‘The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy’ (1968) 56 California Law Review 935.

97  The approach of the courts in England, Commonwealth jurisdictions, and Germany to balancing in libel cases is discussed in Barendt (n 46), 211–22. A similar approach has now been adopted by the Supreme Court of Canada: Grant v Torstar Corporation 2009 SCC 61.

98  See the Lebach case, BVerfGE 35, 202 (1973), discussed in Barendt (n 46), 236.

99  Campbell v MGN [2004] 2 AC 457.

100  See text accompanying n 39.

101  R v Butler [1992] 1 SCR 452.

102  Little Sisters Book and Art Emporium v Minister of Justice [2000] 2 SCR 1120.

103  American Booksellers Ass’n v Hudnut 771 F2d 323 (7th Cir 1985).

104  See Young v American Mini Theatres 427 US 50 (1976) and Renton v Playtime Theatres 475 US 41 (1986).

105  See Lord Hoffmann and Lady Hale in Miss Behavin’ Ltd v Belfast City Council [2007] 1 WLR 1420, paras 16 and 38 respectively.

106  Section II above.

107  See text accompanying nn 53–6 above.

108  See the judgment of Black J in Associated Press v US 326 US 1, 20 (1945).

109  Barendt (n 46), 67–71 and 429–33.

110  See Reno v American Civil Liberties Union 521 US 844 (1997).