Positive Free Speech: Rationales, Methods and Implications

Description

Freedom of expression is generally analysed as a bare liberty against restraint by state action. However, rationales underpinning freedom of speech very often imply 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 is to interrogate the rationales of positive free speech, to consider the political and juridical methods by which it has been 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, and include academic lawyers and communications researchers. Table of Contents List of Contributors 1. Complicating Freedom: Investigating Positive Free Speech I. Introduction II. Positive and Negative Dimensions to Freedom III. Five Themes: Multiple Actors and Actions; Speakers and Audiences; Equality or Parity; Democracy; and Structural Conditions 2. Providing a Platform for Speech: Possible Duties and Responsibilities I. Deficiencies in the Traditional Conception of Freedom of Speech II. The Basis for a Strong Conception of Freedom of Speech III. Media Implications: The Practicalities of Access IV. Strong Freedom of Speech and Media Pluralism V. Conclusion: Strong Speech and Media Pluralism as Positive Speech 3. Positive Protection for Speech and Substantive Political Equality I. Substantive Political Equality and Expression II. Private Censorship III. Judicial Promotion of the Positive Aspects of Free Speech IV. Promoting Equal Opportunities to Communicate V. State Power and its Abuse VI. Conclusion 4. The Access to Information Dimension of Positive Free Speech I. A Brief Note on Theoretical Underdevelopment II. Emergence of an Article 10 Right of Access to Information in Europe III. United Kingdom: A Common Law Principle of Open Government IV. United Kingdom: Subsequent Development of the Common Law Principle V. Dénouements à Strasbourg: Confirmation of the Article 10 Right of Access VI. Conclusion 5. Promoting Civic Discourse: A Form of Positive Free Speech under
the Constitution of Ireland? I. The Emergence of a Binary Model of Expression in Ireland II. The Implications of a Binary Model of Constitutional Expression III. Conclusion 6. The State of Affairs of Freedom: Implications of German Broadcasting Freedom I. Introduction II. Points of Caution or Contrast III. Free Speech Ideas and Techniques IV. Free Speech and the State V. Conclusion 7. The Collective Speech Rights of Minorities I. Rights and Rationales II. Minority Speech Rights in Practice in Slovenia and North Macedonia III. Conclusion 8. The Positive Right to Freedom of Expression and Party Anonymity in Legal Proceedings I. The Positive Right to Freedom of Expression II. The Award of Party Anonymity III. Applying the Positive Right to Freedom of Expression IV. Conclusion 9. Positive Free Speech and Public Access to Courts I. Free Speech in the Courts II. Case Study in 'Negative Free Speech': The Incedal Case III. Case Study in 'Positive Free Speech': The Leveson Inquiry IV. Open Data from the Courts V. Conclusion: Rethinking Access to Court Information 10. Hiding the Truth in the Shadow of the Law? Addressing the Misuse of Confidentiality Clauses in Public Authority Contracts I. The Prevalence of Confidentiality Agreements II. The Legality of Confidentiality Agreements III. Regulating the Use of Confidentiality Agreements IV. Conclusion 11. Speaking and Governing through Freedom of Access to Environmental
Information I. Freedom of Access to Information as a Basis for Speech II. Assessment of the Legal Framework for Access to Information III. Limits to Access to Information IV. Institutional Changes to Develop Capacities V. Conclusion Bibliography Index