Recent speech cases

Cover of From a European Court of Human Rights press release:

Orban v France (application no. 20985/05)

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the applicants’ conviction for, among other offences, publicly defending war crimes, following publication of the book Services Spéciaux Algérie 1955-1957 (“Special Services: Algeria 1955-1957”) …

The Court considered that the applicants’ conviction amounted to interference with their right to freedom of expression. The interference had been prescribed by French law and had pursued the legitimate aim of preventing disorder or crime. The Court stressed above all that it was not for it to rule on the constituent elements of the offence of publicly defending war crimes, its role being confined to ascertaining whether the applicants’ conviction on account of the publication of the book in question could be said to have been “necessary in a democratic society”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them. Those principles also applied to the publication of books in so far as they concerned matters of public interest. … the Court reiterated that freedom of expression within the meaning of Article 10 was applicable not only to “information” or “ideas” regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed. Accordingly, penalising a publisher for having assisted in the dissemination of a witness account written by a third party concerning events which formed part of a country’s history would seriously hamper contribution to the discussion of matters of public interest and should not be envisaged without particularly good reason.

Full text is available here, in French; commentary is available here from Jurist.

ACLU logo, via the ACLU website.From First Amendment Law Prof Blog:

Last week the [US Supreme] Court declined to review the Third Circuit’s most recent opinion finding the Child Online Protection Act (COPA) unconstitutional. The denial of review in Mukasey v. American Civil Liberties Union 534 F.3d 181 (3d. Cir. 2008) [pdf] effectively marks the demise of the statute which has made its way up and down in the federal courts for years. COPA’s provisions, which criminalized web transmissions that were “harmful to minors” and that were made for commercial purposes, were found unconstitutional by the Third Circuit in July because they were not narrowly tailored to advance the government’s compelling interest, failed to reflect available less speech restrictive mechanisms to protect children from the targeted web content, and were overbroad and vague. …

The denial of cert is recorded here; OUT-LAW has a good discussion here, and Jurist has a good one here.

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