Positive Free Speech

Rationales, Methods and Implications

Andrew T Kenyon, Andrew Scott, Andrew T Kenyon, Andrew Scott

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509908301
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

Freedom of expression is generally analysed as a bare liberty against restraint by state action. Underpinning rationales for freedom of speech very often imply, however, that the concept also has important positive aspects, and that to be truly 'democratic' the modern polity requires more than negative freedom. In contemporary conditions, this understanding of free speech raises matters such as media diversity or pluralism, the concept of voice and access to the public sphere, access to information, and the need to rethink the audience in relation to public speech. Whether securing positive free speech is a matter of politics or of law, a task for legislatures or for courts, is an open question. On one level, any programme of inculcating positive dimensions of free speech might be understood as inherently polycentric and hence political in character. Yet, a number of jurisdictions evince enhanced legal recognition for the principle. The aim of this collection of papers is to interrogate the rationales of positive free speech, to consider the political and juridical methods by which it has or may be more fully reflected in the modern state, and to consider the range of practical contexts in which its valorisation has or would have significant implications. The contributors are drawn from an array of European and international jurisdictions. They include academic lawyers and communications researchers

1

Complicating Freedom: Investigating Positive Free Speech

ANDREW T KENYON

I.Introduction

Freedom of expression is commonly understood as limiting state restrictions on speech. Freedom of speech is a negative liberty; it is freedom from external restraint. And that is clearly an important part of free speech. But communicative freedom can also be understood to have positive dimensions; to involve actions that support speech as well as the absence of limitations.¹ That is, free speech is not only a formal freedom, but also a freedom that is effective, existing or realised, to some degree at least. The rationales commonly said to underlie free speech – such as knowledge, autonomy and democracy – involve more than a negative right; the absence of restrictions on speech is insufficient for such rationales.

While supports for speech could be offered by a host of actors, positive approaches to free speech, like negative ones, often focus on the state. Thus, legal analyses of positive free speech often entail the state having obligations to act in support of the freedom, to act in support of the goals or rationales underlying free speech. This reframes communicative freedom and, as I suggest below, complicates it. In a paper that prompted the workshop from which this collection emerged, I wrote:²

There seems little reason to support the idea that free speech exists primarily when the state is not directly limiting speech. If the analysis [of positive free speech] has plausibility, then arguments about free speech would be reframed. Free speech would be understood not merely as a negative legal right, but also in positive terms. New questions would emerge about what legal obligations should be applied in the name of free speech and through what methods.³

From that beginning, the chapters that follow examine a range of ways in which such ideas about free speech obligations and methods might be extended. The chapters’ interests can be grouped across three broad areas, concerning justifications, developments and openness: how positive free speech might be justified; free speech obligations that might be developed; and ways in which positive communicative freedom could support openness of justice, government and business information.

II.Positive and Negative Dimensions to Freedom

An initial point to note is that positive and negative are labels of convenience. The idea is not to divide free speech into two forms of freedom, but to draw out particular dimensions of communicative freedom. That also means positive does not replace negative communicative freedom; rather, both dimensions are significant. In later chapters, authors use a variety of terms for positive free speech – including strong free speech,⁴ the effective enjoyment of free speech⁵ or facilitative freedom⁶ – a variety which reflects the diversity in existing commentary. Labels that take the place of ‘positive’ include active, affirmative, collective, effective, empowering, enabling, facilitative and functional.⁷ ‘Negative’ can also be labelled defensive, formal, freedom from, literal, passive and subtractive.⁸

In many ways, each of the terms can be collapsed into its opposite. The state always acts in ways that affect speech; recognising positive dimensions to the freedom simply increases the range of actions that register as matters of free speech. For example, media subsidies, competition law, public media (its creation, goals, governance and funding), media ownership controls and funding transparency, editorial and journalistic independence, public demonstrations, access to information and journalists’ safety all implicate positive dimensions of free speech.⁹

Despite the variety of terms, positive and negative are commonly used (and debated) across scholarly research on freedom, well beyond law.¹⁰ Here, positive free speech and similar terms are used simply as shorthand for the positive dimensions of communicative freedom. Positive does not necessarily mean a positive right – whether the freedom has positive dimensions is one question, whether they come within a positive legal right recognised by courts is another.

While positive is a common term in the wider literature on freedom, it is worth noting different senses in which the term is often used. In simple terms, positive might mean something like self-mastery or self-perfection – a life of positive freedom being a reflective, self-directed one. Or it might mean enablement or capacity – the conditions that allow an opportunity of freedom to be exercised are part of freedom, not something separate from it.¹¹ There is more subtlety in the wider analysis, but for present purposes that is probably sufficient. The chapters in this collection lean towards the second of these two senses.

What might positive free speech mean in law? The chapters that follow are rich and detailed in their responses; little would be gained by summarising them here. They warrant careful reading. That said, I want to note the range of subjects with which the chapters engage, before drawing out five themes that recur across them and are relevant to positive free speech more generally. In terms of subject matter, the chapters explore:

•media access (and criteria for denying access), media pluralism and public debate, including for networked platforms;¹²

•political equality and campaign finance, private censorship, public forums, media regulation (including public ownership and plurality) and the roles of court, parliament and executive, including the need for courts to recognise positive dimensions of free speech when reviewing government action on these matters;¹³

•access to state-controlled information, contrasting European Court of Human Rights developments and the UK common law principle of open government;¹⁴

•promoting civic discourse through a bifurcated approach to constitutional free speech (comprising deontological-individually focused and consequentialist-public debate focused dimensions) and the state’s role in ‘promoting conditions in which access to information or ideas is not dependent upon the exercise of another’s will’;¹⁵

•the free speech basis of plural forms of media in terms of financing, mission, control and so forth, drawing on the example of Germany’s constitutional law on broadcasting freedom;¹⁶

•collective minority language rights and the resulting need for state-supported media, with ‘scarce’ state resources being ‘devoted more towards enabling participation parity in … domestic political life’;¹⁷

•party anonymity in court proceedings, and ways in which positive dimensions of free speech could help strengthen and make more consistent the making of orders;¹⁸

•access to court information and court communication to the public, and the argument that recognising positive free speech could help courts facilitate public access to and understanding of law;¹⁹

•confidentiality clauses in public contracts, in which effective regulation and even appropriate oversight mechanisms remain challenging for law, and ways in which positive free speech and government accountability might assist;²⁰ and

•access to environmental data held by companies, including being able to reuse and mine the data, for the purposes of public regulation and wider involvement in that regulation.²¹

The examples of positive free speech are not comprehensive, just as a collection focused on negative dimensions of free speech could not be comprehensive. But the aim is to illustrate how the implications of free speech and their application can be rethought in comparison with analyses taking a substantially negative approach to the freedom. There is a longstanding strand of legal writing and wider literature that addresses positive free speech,²² but this collection has been prompted by the sense that further consideration is warranted. Indeed, as several chapters suggest, the contemporary communications environment might make positive communicative freedom more significant.²³ Positive free speech remains relatively marginal in English language literature, and there is value in exploring why the freedom’s positive dimensions might be valuable, the sorts of things they encompass, how they might be pursued and some of the challenges in doing that. Given the ways in which negative free speech is often ‘entrenched’ and appears to be ‘the natural state of affairs’,²⁴ in many common law jurisdictions at least, there is merit in merely suggesting that free speech has positive dimensions and considering questions ‘about the purpose, scope and permissible extent of government action’.²⁵

All this complicates freedom. Free speech issues arise across more domains, there are more actors and actions relevant to it, and the issues can int...

Table of contents

• Cover
• Title Page
• Table of Contents
• List of Contributors
• 1. Complicating Freedom: Investigating Positive Free Speech
• 2. Providing a Platform for Speech: Possible Duties and Responsibilities
• 3. Positive Protection for Speech and Substantive Political Equality
• 4. The Access to Information Dimension of Positive Free Speech
• 5. Promoting Civic Discourse: A Form of Positive Free Speech under the Constitution of Ireland?
• 6. The State of Affairs of Freedom: Implications of German Broadcasting Freedom
• 7. The Collective Speech Rights of Minorities
• 8. The Positive Right to Freedom of Expression and Party Anonymity in Legal Proceedings
• 9. Positive Free Speech and Public Access to Courts
• 10. Hiding the Truth in the Shadow of the Law? Addressing the Misuse of Confidentiality Clauses in Public Authority Contracts
• 11. Speaking and Governing through Freedom of Access to Environmental Information
• Bibliography
• Index
• Copyright Page