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Media Freedom and Pluralism

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Beata Klimkiewicz

Section 2: Content and service-related regulation

Chapter 5. A Failure in limiting restrictions on Freedom of speech

The Case of the Audiovisual Media Services Directive

Péter Molnár

Texte intégral

5.1. Introduction

1This essay will first describe justifications for freedom of speech. Second, it will critically analyze the reasons presented for extending the scope of the EU’s Television without Frontiers directive by the audiovisual Media services (AVMS) directive. Third, it will explore whether the general, non-media-specific rationale—the protection of “core societal values”—provided for the extension of the scope of the Television without Frontiers directive is convincing, given that freedom of speech is undoubtedly one of the core values of our European tradition, and taking the constitutional treatment of hate speech in Hungary as an ex-ample. Finally, this essay will conclude that the AVMS directive poses certain limitations to freedom of speech without providing justification for doing so, and it should be re-examined by the EU and the Council of Europe.

2it has to be emphasized that this essay aims only to scrutinize the AVMS directive from the perspective of freedom of speech, with particular attention to freedom of political speech, the openness of public discourse as a precondition for democracy, and the anti-incitement-to hatred provision of the directive, as the part of the extended regulation that can be abused to suppress dissenting voices.

5.2. Justifications for freedom of speech

3First of all, if a state or a group of states wants to propose regulatory limits, the respective state or group of states has to make its case that the limitations are justified under the necessity and proportionality tests elaborated by both national and international courts. in the absence of such justification, freedom of speech has to be respected.

4The First amendment of the U.S. Constitution sounds like an absolute prohibition on restricting freedom of speech: “Congress shall make no law […] abridging the freedom of speech, or of the press.” But the sophisticated interpretations developed in American jurisprudence recognize justifiable limitations on the right to freely communicate information and ideas. still, the fact that there are no reasons listed in the U.S. Constitution for limiting freedom of speech or freedom of the press pro-vides an opportunity for stronger arguments against restrictions.

5Like all other international documents, article 10 of the European Convention on Human rights states that “everyone has the right to freedom of expression” (Council of Europe, 1950, article 10.1). At the same time it lists reasons why this right can be restricted. according to its “necessity test,” the European Court of Human rights makes its judgments after deciding whether the restriction on freedom of expression in a member state of the European Council was based on a rule prescribed by law, falls under one of the reasons listed in paragraph (2) of article 10, whether it is “necessary in a democratic society” (Council of Europe, article 10.2), and whether it is proportionate with its intended purpose.

6Even if article 10 of the European Convention on Human rights provides more room for limiting freedom of speech than the First amendment in the U.S. Constitution does, the ECHR also makes it clear that limiting freedom of speech has to meet strict constitutional measures.

7There are many eloquently expressed rationales for freedom of speech to be respected by governments and international organizations. Below i list just a few examples, including some of the most often-mentioned justifications for freedom of expression. The extension of the scope of the Television without Frontiers directive by the AVMS directive has to be considered in the light of the arguments for freedom of speech.

5.2.1. Search for truth1 and the marketplace of ideas

  • 1 For a critical analysis of the truth-related argument for freedom of speech, see Schauer (1982).
  • 2 Justice Holmes dissenting in Abrams v. United States 250 US 616 (1919).
  • 3 The Media Freedom Internet Cookbook (Vienna: OSCE, 2004), pp. 21–22.

8John Stuart Mill (1859, 1978) argued that in the search for truth, even the free expression of wrong opinions is highly valuable for humanity: “[…] the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. if the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error” (Mill, 1978, p. 16). As part of a cross-Atlantic dialogue on freedom of expression, building on Mill’s ideas, Justice Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the marketplace of ideas.”2sketching the concept of the “marketplace of ideas” (an idea that has itself been a popular subject of constant debate in this unique marketplace), Holmes produced the first theory of the First amendment. it is a theory that continues to hold force, as reflected, for example, in the Hate speech on the internet recipe of the Media Freedom internet Cookbook, which drew recommendations from the 2004 Amsterdam internet Conference of the OSCE representative on Freedom of the Media: “instead of focusing on ways to censor hate speech, we must concentrate on answering such expression with more speech. The battle against intolerance cannot be won through government regulation or mere legislative action. Instead, it is a fight that will be won or lost in the competition of ideas.”3

5.2.2. Democratic self-government

9Besides the argument for truth, another instrumental justification for freedom of speech is that without it, democratic self-government simply cannot work appropriately. Of course, self-government requires limiting the government itself, in order to avoid concentration of power. Effective control of the government is particularly important in regard to freedom of speech, because no living human being in a position of power can rest easy when her public activities are criticized.

10Self-government requires a robust public discourse, but it is precisely the allowance of the robust public discourse that requires self-limitation from those in power. In other words, the rule of the game is that public officials have to be confronted with far more criticism than ordinary citizens. It is extremely difficult to admit one’s own errors, especially if one is harshly criticized. At such times, many convince themselves that their sacred goals are inherently right and faultless, and that criticism should therefore be suppressed.

  • 4 Jon Elster’s metaphor of a roped Odysseus to express the nature of the constitutional self-limitati (...)

11The precondition for introducing self-limiting regulation is to recognize that self-limitation is a fundamental necessity. Does this step require special historical moments such as the foundation of the United States or the post-communist transitions to democracy? Probably so. The fundamental principle of free speech and the foundation of the divisions of power were laid down at historic moments. Then the respective structures worked out the speech-protective interpretation of that principle. Self-limitation is necessary, but without the help of outside structural restrictions, self-limitation alone is not sufficient. Like Odysseus when he heard the song of the sirens, we cannot really limit ourselves, but we must create a structure to limit each other.4

12Even if the separation of powers can help us to limit the authoritative influence on the public debate about speech law, the common understanding of the necessity of self-limitation in this field is a basic task for all democracies. it is easier to meet this challenge if we do not forget about the threats we may pose to ourselves. In other words, to keep this wisdom alive, constitutional norms should be enriched with lessons learned in the post-dictatorial countries. This is all the more true because our world, with its fast-developing technology and sprawling democracy, may cause us to forget about such pitfalls.

13Can the potentially suppressive forces be only others? or could we find ourselves in the position of the powerful? Actually, if we are aware of our human nature—which is far from perfect—it may come as a surprise that we are able to develop self-limiting regulation at all. The difficulties of self-limitation may be detected in the story of the fall and rise of the licensing system during the English revolution in the seventeenth century. The licensing system briefly collapsed and was later re-introduced. John Milton wrote his famous Areopagitica (1644, 1918) against censorship, when “the very English people in whom he had once placed so much trust” reintroduced the previously abolished licensing system only some years later because of their fear that the proliferation of publications would support the king in the war (Blasi, 1996, p. 9). as Vincent Blasi writes: “Then the new technology of mass communication was the unlicensed pamphlet, printed in bulk, in the vernacular, no longer confined to abstruse theological disquisitions”(1996, p. 14). Once in power, the revolutionary forces were frightened by the powers of the effective new technology, forgetting that the licensing system served the power of the king, their opponent.

  • 5 See “after the Fall,” ed. snyder (1999).

14Examples of this can be found not only in the distant past, but in the more recent experience of the former soviet bloc and in former dictatorships elsewhere.5 They keep reminding us to be cautious, because we are “crazy monkeys,” to quote the Hungarian scientist and Nobel Prize winner Albert Szent-Györgyi (1989).

15Thus, the self-government rationale for freedom of speech is about limiting and controlling the government in order to create and maintain open, robust public discourse which serves as a fundamentally important check on governmental power. Vincent Blasi called it “the checking value” in the First amendment of the U.S. Constitution. as Blasi writes: “[…] free expression is valuable in part because of the function it performs in checking the abuse of political power, […] While a proponent of the checking value may regard free expression as important partly because of its contributions to progress, wisdom, community, and the realization of individual potential, he is likely to value free expression primarily for its modest capacity to mitigate the human sufferings that other humans cause. Much of that suffering is caused by persons who hold public office” (Blasi, 1977, p. 528).

16The pessimistic tone about human nature appears throughout Blasi’s works. He thoroughly analyzes Milton’s disappointment in the English people and scrutinizes dilemmas of freedom of speech through a dialogue spanning the Atlantic and spanning centuries. The underlying idea, carried through the ages, is that we, as humans, should not allow ourselves to control public discourse, for without free public discourse, abuse of power is inevitable. This wisdom should be emphasized much more than it is. Sweeping, superficial arguments about the workings of political communities emphasize the dangers of free speech. A beautifully written response to those urging limits on free public discourse is Justice Brandeis’ famous concurring opinion in the Whitney case, joined by Justice Holmes. Brandeis wrote:

  • 6 See Justices Brandeis and Holmes concurring in Whitney v. California, 274 U.S. 357 (1927).

“Those who won our independence […] believed liberty to be the secret of happiness and courage to be the secret of liberty. […] They recognized the risks to which all human institutions are subject. But they knew […] that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”6

17Brandeis recognized “the risks to which all human institutions are subject,” but he argued that repression of ideas inevitably undermine government.

5.2.3. Individual autonomy

18As opposed to instrumental justifications of freedom of speech, the argument based on individual autonomy supports the free communication of information and ideas as a value in itself, not as a value that serves another goal. The Hungarian Constitutional Court combines the argument about individual freedom with the one about the social process of a public discourse :

“The Constitution guarantees free communication—as an individual behaviour and social process—and it is not the content to which the right of free expression relates. Every opinion, good and damaging, pleasant and offensive, has a place in this social process, especially because the classification of opinions is also the product of this process. […] With the freedom of the press having become a reality no one speaking out publicly may invoke external compulsion, and with every line penned he gives himself out and risks his entire moral credibility.”7

19Ronald Dworkin (1996) emphasizes that the constitutive justification of freedom of speech—which does not rely on free speech’s instrumental value—provides the necessary broad protection for all expressions. Beside the speaker’s point of view, Dworkin also lays down a clear argument from the perspective of the listeners: “We retain our dignity, as individuals, only by insisting that no one—no official and no majority—has the right to withhold an opinion from us on the ground that we are not fit to hear and consider it” (1996, p. 200). Edwin Baker argues that freedom of speech has to be respected because it is “central to individual liberty”: “[…] freedom of speech is fundamental less because of its instrumental value or the value of reasoned arguments and more because freedom to engage in self-expressive acts is central to individual liberty. […] Part of the reason to protect speech, […] is a commitment to the view that people should be able to participate in constructing their world” (1994, p. 1197).

20The quotes from the Constitutional Court, Dworkin, and Baker together can be subsumed in a view that we cannot be dignified participants in public discourse if we cannot express what we wish to say, and if we cannot hear what others wish to express. Robert Post (2000) puts forth a “participatory theory,” arguing that open public debate makes individuals authors in democracy, even if their opinions do not win the support of a majority.

5. 3. Justifications for media-specific restrictions on freedom of speech

21The quote from Dworkin reflects a salient question. Under which circumstances and to what extent can/should a state or a group of states limit freedom of speech in order to protect the rights of those to whom the speech is addressed? At this point it is important to make a distinction between general restrictions that apply to expressions uttered in any part of the public sphere and media-specific restrictions that apply only to a particular segment of the public sphere. Traditionally, communication through radio and television is considered a part of the public sphere, where the special characteristics of the communication technology justify and might even trigger certain regulations of the content. This refers especially to content that could not be justified in regard to the other parts of the public sphere without the specific features of the technology necessary to carry radio and television programs.

22A relevant example of general restrictions on freedom of speech can be found in the second paragraph of article 10—on freedom of expression—of the Council of Europe’s Convention for the Protection of Human rights:

“The exercise of these freedoms, since it carries with its 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 or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Council of Europe, 1950, article 10.2).

23At the same time, the first paragraph of article 10 sets the stage for media-specific restrictions: “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises” (Council of Europe, 1950, article 10).

  • 8 Jersild v. Denmark, September 23, 1994, application number 00015890/89, article 31.

24Placing the reservation that provides that restrictions attached to “broadcasting, television or cinema enterprises” are acceptable under the Convention as the third sentence of the first paragraph highlights that these limitations on freedom of expression are separate from the ones listed in the second paragraph. The text of the Convention mentions not only broadcasting, but also television and cinema enterprises. In the well-known Jersild case, the European Court of Human rights reasoned that: “[…] the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media […]. The audiovisual media have means of conveying through images meanings which the print media are not able to impart.”8

  • 9 Sajó (2004, pp. 96–97). In footnote 85 of his work, Sajó provides the following data on the researc (...)

25But neither the text of the Convention nor the reasoning of the Court should lead to a reading of the Convention that allows for unjustified restrictions on freedom of speech. As András Sajó writes: “research indicates that the Convention or its equivalents were used nearly 1200 times in 109 countries to justify various restrictive measures aimed at the press.”9 The European Court of Human rights is moving towards the broader recognition of freedom of expression as an international human right (Hins and Vorhoof, 2007) and it should continue to maintain this direction to effectively protect freedom of speech under the European Convention for Human rights.

5.4. The audiovisual Media services directive and the draft convention of the Council of Europe on access to public data

  • 10 MacKenzie, K. (2006), “Truly nonsensical law for Television,” Financial Times, September 5, 2006.

26Unlike the former Television without Frontiers directive (European Parliament and the Council, 1997), the AVMS directive (European Parliament and the Council, 2007) covers a broadened scope of audiovisual media services, including both on-demand and scheduled services. The shift of the directive towards on-demand audiovisual media services is accompanied by the institutional shift towards communication regulatory bodies and broadening of their competences. The observation of a Financial Times article written in the fall of 2006 critically observes this fundamental change in the European media regulatory landscape: “Whereas the TWF directive dealt with an established medium, the fundamental problem with the AMS directive is that the delivery channels Brussels hopes to regulate have not been developed fully yet. What can the policy-makers hope to achieve in trying to lay down the law now? […] the lack of exposure and discussion on such a fundamental issue is mystifying.”10

  • 11 The legislative proposal for the revision of the “Television without Frontiers” directive adopted b (...)
  • 12 Reding, V., Commissioner for information society & Media, speech (http://ec.europa.eu/information_s (...)

27The legislative proposal adopted by the Commission on December 13, 2005, argued that the control exercised by users on non-linear services justifies lighter regulation.11But instead of leaving the non-linear media services within the scope of the E-Commerce directive, the on-demand services were incorporated in the new directive. The self-contradicting manner of the argument in support of the directive can be illustrated by the following comments addressed by Viviane Reding, Commissioner for information society and Media: “Today, audiovisual service providers supplying the same content as traditional broadcasters are often regulated very differently, solely because they use a different mode of delivery. Often, such differentiated regulation is justified by the different degree of user control.”12

  • 13 Ibid.

28The argument further develops in what follows: “However, where core societal values—such as protection of minors or the fight against racial hatred—are concerned, such differentiation is hard to justify. Why, for instance, should the same film be subject to differing child protection rules, or none, depending solely upon whether it’s a scheduled TV broadcast, or whether you downloaded it?”13

  • 14 The legislative proposal for the revision of the “Television without Frontiers” directive adopted b (...)

29Hence it should be assumed that the reason for expanded regulation is protection of “core societal values.” of course the question immediately arises: Where is the argument for freedom of speech as a core societal value? Freedom of speech is strongly rooted in our common European heritage and values. Unfortunately the argument for the directive revision has not fully recognized the importance of these values. The Proposal’s explanatory Memorandum states: “Concerning […] the incitement of hatred, there seems to be quite a broad consensus on the current balance in the TVWF directive. Member states, public service broadcasters, religious organizations and consumers’ and viewers’ organizations have all expressed the view that […] the value of human dignity) should apply to non-linear services as well, and not only to traditional television.”14

  • 15 Ibid., p. 10.

30It is questionable to claim a broad consensus for the extension of the scope of the Television directive based on the opinions of some organizations, when many other organizations, among them the representatives of internet providers and cyber-liberty advocate groups, were not mentioned. But if accuracy was not a strength of the Commission’s proposal, neither was theoretical clarity. The explanatory Memorandum ventured the following obscure argument: “The set of applicable rules shall no longer depend on the delivery platform but on the nature of a service.”15

31An important question appears in this context: should we base limitations on free speech in Europe on undefined terms such as the “nature” of communication services? My answer is no. as Lawrence Lessig writes: “nature. […] This kind of rhetoric should raise suspicions in any context. […] if there is any place where nature has no rule, it is in cyberspace. If there is any place that is constructed, cyberspace is it” (Lessig, 1999, p. 24).

  • 16 The declaration was drafted by the author of this article during the COST Conference at the Central (...)

32In June 2006, dozens of media scholars from a number of countries signed a critical declaration16 concerning the planned AVSM directive.

“as European media scholars we call the attention of the decision makers of the European union and the Council of Europe that the revision of the Television without Frontiers directive of the European union and the European Convention on Transfrontier Television of the Council of Europe should not restrict freedom of expression and freedom of information on the internet, and should not impose un-due, premature regulation on fast-changing new communication technologies. The extension of the scope of some rather burdensome part of the Television directive to the internet […] would be an unjustifiable restriction of freedom of speech and freedom of information. Neither the scarcity of frequencies, nor the push media character of television applies to the unique architecture of the internet.”17

  • 18 Among Member states, the British government—and Ofcom—argued for a significant narrowing of the sco (...)

33When the declaration was born, the scope of the directive was already narrower than had originally been proposed by the European Commission. The scope of the draft had been narrowed down to cover only audiovisual media services, instead of covering all audiovisual internet content. The final text of the directive incorporated further significant changes in order to define more strictly the scope of the document.18 Yet the new directive still contains limits on the freedom of communicating ideas and information through a fast-growing and the freest-ever communication tool, the internet. The line between content that is covered and not covered by regulation is still not clear.

34The more fundamental problem, however, is that some of the content-based rules in the AVMS directive apply to both broadcast and on-demand services. In this light, the argument of lighter-touch regulation for on-demand services sounds rather weak. Highlighting lighter-touch regulation in previous communication initiatives gave the impression that on-demand services will not fall under the same rules as broadcast services. In some cases they do. The above-mentioned declaration observes that freedom of speech could be under threat, especially in new Central and east European Member states: “The un-justifiable restrictions suggested in the draft proposal of the European Commission would put freedom of speech and freedom of information at risk especially in Central-and east European countries where arbitrary use of the state regulatory power is more likely than at least in some West European democracies.”19

  • 20 The recommendations were produced by the workshop on non-linear audiovisual media services and the (...)

35The recommendations20 of December 2006, produced by the workshop of CEU, OSCE, and the Rafto Foundation for Human rights touched upon technological challenges:

  • 21 Recommendations to the European Parliament on the draft AVMS Directive; available at http://www.osc (...)

“The platform-neutral approach of the draft AVMS directive targets a vast area of new and yet to be developed services, including those that differ considerably from ‘classic’ broadcast. […] The directive for the first time on the European level permits content-based restrictions of speech outside traditional broadcast, including content on the internet, so called ‘non-linear audiovisual media services.’ This poses enormous regulatory challenges. The debate until now has shown that there is no sufficient level of common understanding on how to address this rapidly changing communication environment.”21

  • 22 Grace, n. (2005): “How radio al-Tajdeed outwitted British law,” available at www.clandestineradio.c (...)
  • 23 Lasker, J. (2005) “Terror Forum sows seeds of Jihad,” Wired News, July 19, 2005.

36Content regulation can constrain freedom of speech, especially in less developed democracies. What will it mean in states where democracy is fragile, and particularly where the internet is the only free channel of communicating ideas and information? Some governments might see this as an easy opportunity to regulate speech or suppress a political dissent through the anti-hate speech provision of the AVMS directive. At the same time, whether the anti-hate speech provision can be used effectively is open to question. A racist website in Hungary can be used as an illustration. The Olah action Web site contained a video game based on killing the Roma community “to make one county after another Roma-free.” self-regulation worked, as far as it can work for a Web site, and the site was closed down by the provider after receiving notice from radio C, the Roma community station in Budapest. But later, the site became available again through another server. Another example is Tajdeed.org.uk, which “supports, portrays and glorifies terrorism” and “is a London-registered particularly well-financed one of hundreds of jihadist message boards.”22J. Lasker notices that Tajdeed. org.uk was shut down several times in the past twelve months and kept reappearing on different servers around the world.23

  • 24 “In 1991, shortly after Hezbollah actively entered the Lebanese political scene, al Manar TV was la (...)
  • 25 For example, Hungary has a self-regulatory system for the internet content providers, established b (...)
  • 26 Budapest Declaration for Freedom of the internet, June 15, 2006 (http://www.cmcs.ceu.hu). See also (...)

37Unlike the examples mentioned above, the al Manar case24shows that a satellite television channel spreading hate speech can be successfully removed from the transmitting satellite, and that it is much harder for such a station to find another satellite to reach its audience again. New communication technologies require new regulatory approaches. Such approaches already exist. Besides the laws based on the e-commerce directive of the European Union, general laws, like the Criminal Code or the Civil Code, apply to content communicated through the internet and other new technologies as well. self-regulation can substantially cover all fields of the content-based regulatory provisions of the AVMS directive.25Amending the laws based on the e-Commerce directive is probably necessary, but only to the extent that the new directive explicitly requires Member states to rely on state regulation when implementing the directive. As the above-mentioned declaration states: “The E-Commerce directive of the European union already provides the necessary regulatory framework for the information society services. […] The fast development of the new communication technologies also triggers that both the European Union and the Council of Europe rather rely on self-regulation and let the new communication technologies to develop freely and people to ex-change ideas and information through them unrestricted.”26

38It has to be emphasized that limitations to free speech are especially damaging if they target channels of communication that might provide the only means of freedom of expression.

5.5. Core values as a general justification to restrict freedom of speech in Europe?

39Besides the scarcity argument for regulating television, the justification of media-specific, content-based regulation of television, or linear services is that they work as push media with largely the same time mass-impact. This justification is not relevant for non-linear services, because they do not rely on scarce resources, are individually used, and work as pull media. Prohibition of hate speech on television, based on media-specific content, is not applicable to the internet, because the basic features of the internet are just the opposite of the characteristics that justify the special restrictions on radio and TV. For the same reasons, the traditional media regulation of linear/broadcast services has definable scope, while the scope of an attempted regulation of demand/ non-linear media services cannot be defined.

40A huge policy change brought by the AVMS directive has an important institutional implication: it shifts the media and communication policy domain towards the regulatory authorities usually working under the government. Thus, a protection of “core societal values” cannot be based on a media-specific justification.

41With all these reservations, we can still examine whether the argument about the protection of “core societal values” could support the extension of the scope of the directive, leaving aside the issue that the old and the new directive are not general regulations, but media-specific ones. When assessing the societal value argument, it has to be highlighted that freedom of expression is also a core societal value in Europe. To provide a balanced assessment of core societal values at stake in connection with the anti-incitement-to-hatred provision of the AVMS directive, the following part will focus on argumentation favoring freedom of expression by the Constitutional Court of the republic of Hungary in its decisions concerning hate speech.

5.6. The protection of free speech as a core societal value— the constitutional treatment of hate speech in Hungary

  • 27 For a critical assessment of the decision, see Sajó, a. (1994).

42The Constitutional Court’s 1992 hate-speech decision played a decisive role in the Hungarian constitutional argument about freedom of speech and public debate.27 The reasoning of the decision mirrors the political climate of a newly post-communist country, where liberty in the 20th century was rare and where people could appreciate the value of free expression long denied them:

“Historical experience shows that on every occasion when the freedom of expression was restricted, social justice and human creativity suffered and humankind’s innate ability to develop was stymied. The harmful consequences afflicted not only the lives of individuals, but also that of society at large, inflicting much suffering while leading to a dead end for human development. Free expression of ideas and beliefs, free manifestation of even unpopular or unusual ideas is the fundamental requirement for the existence of a truly vibrant society capable of development” (Sajó, 1995, pp. 6–7).

43The Court’s reasoning reflects the sensibility of a people who have first-hand experience of freedom denied. This experience highlights the fact that a society that restricts freedom of speech on the basis of its content is playing with fire, if not worse. It emphasizes not the risk of allegedly, or really dangerous speech, but rather the risk of censorship.

44In its third hate speech decision, in 2004, the Constitutional Court stressed that equality also triggers state restraint from content-based regulation of speech, because

“[…] the state may not prohibit the expression and the dissemination of any views merely on the basis of their contents, nor may certain opinions be declared more valuable than others, as this would violate the requirement of treating individuals as persons of equal dignity (such a prohibition would result in preventing certain groups of people from expressing their personal convictions), and—by excluding certain views—prevent the development of a free, lively, and open debate involving all relevant opinions, even before a political discourse could emerge.”28

45But should even racist speech be part of the public discourse? What would require a democracy to tolerate such expressions in its political debates? The answer lies in what Robert Post calls the “paradox of the public discourse” (Post, 1990): “the first amendment, in the name of democracy, suspends legal enforcement of the very civility rules that make rational deliberation possible” (Post, 1991, p. 287). Of course, making public discourse possible is only one of the many reasons for prohibiting racist and other hate speech. But the “paradox of public discourse” includes the equality argument of the Constitutional Court. As Post writes:

“The norm of equality violated by racist speech […] is substantive; […] it is the kind of norm that ought to emerge from processes of public deliberation. Although the censorship of racist speech is consistent with this substantive norm of equality, it is inconsistent with the formal principle of equality, because such censorship would exclude from the medium of public discourse those who disagree with a particular substantive norm of equality. Such persons would thus be cut off from participation in the processes of collective self-determination. First amendment doctrine has tended to resolve the paradox of public discourse in favor of the principle of formal equality, largely because violations of that principle limit pro tanto the domain of self-government, whereas protecting uncivil speech does not automatically destroy the possibility of rational deliberation” (Post, 1991, p. 304).

46The Hungarian Constitutional Court seems to follow the same logic, and in its 2004 decision it emphasizes that only the test against consequences—as opposed to a content-based approach—can meet the strict constitutional requirement to protect freedom of speech. The Court argues that: “even in the case of extreme opinions, it is not the contents of the opinion but the direct and foreseeable consequences of its communication that justify a restriction of free expression and the application of legal consequences…”29

  • 30 See Justices Brandeis and Holmes concurring in Whitney v. California, 274 U.S. 357 (1927).

47After decades of censorship, the prevailing view in Hungary supported more speech and was reluctant to restrict communication. The argument of the Constitutional Court reflects the words of Justice Brandeis, providing one more example of the cross-Atlantic dialogue on freedom of speech: “Those who won our independence by revolution were not cowards. […] if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”30

48Of course, averting evil through criticism requires engagement, which is seemingly less comfortable than relying on the state to prohibit hate speech. But at least under some circumstances, which are unique to each country, as the example of Hungary shows, it is an effort worth making, as it can contribute to the development of a good citizenry. as Vincent Blasi writes: “[…] a regime of free speech can help to develop character by requiring those who would beat back bad ideas and contain evil demagogues to pursue those worthy objectives in the most arduous way: engagement rather than prohibition. […] in this view, the most dangerous ideas can be defeated only by strong persons, not by repressive laws” (Blasi, 1999, pp. 1573–1574).

49John Stuart Mill, at the end of the second chapter of his essay “on liberty,” recapitulates the four grounds that in his view justify the liberty of thought and discussion, including the value of letting even obviously wrong opinions be freely expressed.

“Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. and not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience” (Mill, 1978, p. 50).

  • 31 HCLU (Hungarian Civil liberty Union) (2001) Policy Paper on Freedom of information, available at ht (...)

50The HCLU offers similar reflection, but goes even further than Mill. In the view of the HCLU, banning opinions that would challenge the truth not only results in accepting the truth “in the manner of a prejudice,” or as a “dogma,” as Mill writes, but might make the general public skeptical about the truth. The HCLU explicitly mentions Holocaust denial as an example. It argues that “prohibiting the expression of any views, even those which are obviously false, may harm the community. As long as it is not forbidden to deny an established truth (e.g. that the Holocaust took place), the general public has good reason to believe what the experts say about the facts of history. If it becomes forbidden publicly to deny a thesis, the general public will be deprived of any basis for its belief in what the expert says.”31

51Arguments from the First amendment jurisprudence could have been influential in Hungary because the framers of the American Constitution were motivated by similar experiences. For example, one state suppressed a particular religion in the name of another, and wrongly so. America’s founding fathers were aware of the dangers of leaving too much power in one hand. Interestingly, during the democratic transition, the new political parties in Hungary, rejecting the previous totalitarian governments and building on the experience of democracies and liberal political philosophy, were similarly suspicious of concentrating state power and allowing the government to regulate the public discourse.

5.7. Conclusion

52The extension of the scope of the EU’s Television without Frontiers directive into the audiovisual Media services (AVMS) directive has not been supported by either general or media-specific justifications that would eventually legitimize limitations on freedom of speech. The new directive presents a clear example of regulatory intervention in the process of free communication that cannot be sufficiently defended against limitations of free speech protected under the constitutional rules. Freedom of expression remains a core societal value in Europe only if—at least—the implementation of the new directive narrows the use of regulation to its constitutionally justifiable scope. Meanwhile, the Council of Europe has a huge responsibility when it reviews its own Television without Frontiers Convention.

Notes

1 For a critical analysis of the truth-related argument for freedom of speech, see Schauer (1982).

2 Justice Holmes dissenting in Abrams v. United States 250 US 616 (1919).

3 The Media Freedom Internet Cookbook (Vienna: OSCE, 2004), pp. 21–22.

4 Jon Elster’s metaphor of a roped Odysseus to express the nature of the constitutional self-limitation is mentioned in Sajó, a. (1999, p. 7).

5 See “after the Fall,” ed. snyder (1999).

6 See Justices Brandeis and Holmes concurring in Whitney v. California, 274 U.S. 357 (1927).

7 Constitutional Court decision 30/1992 (V. 26.) AB, pp. 15–17. (http://www.mkab.hu/content/en/en3/13589104.htm; retrieved July 1, 2008).

8 Jersild v. Denmark, September 23, 1994, application number 00015890/89, article 31.

9 Sajó (2004, pp. 96–97). In footnote 85 of his work, Sajó provides the following data on the research he is referring to: Bullen, d., and r. stark, (1997) Perverse Result: How the European Convention on Human Rights Supports Global Restrictions on Press Freedom, Collected Cases and Commentary, World Press Freedom Committee.

10 MacKenzie, K. (2006), “Truly nonsensical law for Television,” Financial Times, September 5, 2006.

11 The legislative proposal for the revision of the “Television without Frontiers” directive adopted by the Commission on 13 December 2005, Preamble (28).

12 Reding, V., Commissioner for information society & Media, speech (http://ec.europa.eu/information_society/newsroom/cf/comnews.cfm?type=sp; retrieved July 2, 2008).

13 Ibid.

14 The legislative proposal for the revision of the “Television without Frontiers” directive adopted by the Commission on 13 December 2005 explanatory Memorandum, p. 5.

15 Ibid., p. 10.

16 The declaration was drafted by the author of this article during the COST Conference at the Central European University in Budapest.

17 Budapest declaration for Freedom of the internet, June 15, 2006 (http://www.cmcs.ceu.hu). See also http://www.edri.org/edrigram/number4.16/Budapestdeclaration.

18 Among Member states, the British government—and Ofcom—argued for a significant narrowing of the scope of the new directive, if covering on-demand/non-linear services.

19 Budapest declaration for Freedom of the internet, June 15, 2006 (http://www.cmcs.ceu.hu). See also http://www.edri.org/edrigram/number4.16/Budapestdeclaration.

20 The recommendations were produced by the workshop on non-linear audiovisual media services and the draft EU audiovisual media services directive organized on December 1, 2006, by the OSCE representative on Freedom of the Media, the Center for Media and Communication studies of the Central European University Budapest and the Rafto Foundation for Human rights.

21 Recommendations to the European Parliament on the draft AVMS Directive; available at http://www.osce.org/documents/rfm/2006/12/22708 _en.pdf.

22 Grace, n. (2005): “How radio al-Tajdeed outwitted British law,” available at www.clandestineradio.com, retrieved august 18, 2005.

23 Lasker, J. (2005) “Terror Forum sows seeds of Jihad,” Wired News, July 19, 2005.

24 “In 1991, shortly after Hezbollah actively entered the Lebanese political scene, al Manar TV was launched. The television has been several times accused of broadcasting programmes containing hatred and violence. in December 2004, the us department of state put al-Manar on the Terrorist exclusion list due to the channel’s ‘incitement of terrorist activity.’ on 13 December 2004, the French ‘Conseil d’etat,’ the highest administrative Court in France, ordered the French-based Eutelsat Company to shut down al Manar broadcasts following accusations that its programmes were anti-semitic and could incite hatred. […] On 14 december al Manar obliged voluntarily […]. The TVWF directive assigns responsibility for ensuring that its rules are respected to the Member state that has jurisdiction. in this case the French authorities were responsible for prohibiting the broadcasts of al Manar because al Manar was transmitted via the French satellite system Eutelsat.” available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/05/98&format=HTML&aged=0&language=EN&guilanguage=en.; retrieved July 3, 2008.

25 For example, Hungary has a self-regulatory system for the internet content providers, established by the Hungarian association of Content Providers (MTE). Since its establishment in 2001, MTE has provided an effective ex-ample of self-regulation. The MTE was founded to avoid the extension of the authority of the ORTT to cover the internet, as has been suggested by a former chairman of ORTT.

26 Budapest Declaration for Freedom of the internet, June 15, 2006 (http://www.cmcs.ceu.hu). See also http://www.edri.org/edrigram/number4.16/Budapestdeclaration.

27 For a critical assessment of the decision, see Sajó, a. (1994).

28 Decision 18/2004 (V. 25.) AB, p. 7; available at http://www.mkab.hu/content/en/en3/09360304.htm; retrieved July 3, 2008.

29 Decision 18/2004 (V. 25.) AB, p. 7; available at http://www.mkab.hu/content/en/en3/09360304.htm; retrieved July 3, 2008.

30 See Justices Brandeis and Holmes concurring in Whitney v. California, 274 U.S. 357 (1927).

31 HCLU (Hungarian Civil liberty Union) (2001) Policy Paper on Freedom of information, available at http://www.tasz.hu/files/tasz/imce/infoangol_uv.pdf.

Auteur

Péter Molnár (Ph.D. Eötvös Loránd University) is a Senior Research Fellow at the Center for Media and Communication Studies at Central European University. A former Member of the Hungarian Parliament, Molnár was one of the drafters of the 1996 Hungarian media law. Since 1994, he has been teaching communications law at ELTE University in Budapest. Additionally, he taught a freedom of speech course at the Graduate school of Journalism of the University of California in Berkeley (2002) and at the Graduate school of Journalism and Communication of the University of Colorado (2005). He was awarded a German Marshall Fellowship, Fulbright Fellowship and Shorenstein Fellowship. Currently, he also works as legislative advisor to the Hungarian informatics and Telecommunication Ministry. He is member of the Complaint Commission of the Hungarian Radio and Television Board. E-mail: molnarp@ceu.hu

© Central European University Press, 2010

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