Free speech and the rule of law

Kenny presents Obama with a bowl of shamrock, via the Irish government's websiteLast week, on 17 March, as the world celebrated Ireland’s national day in honour of St Patrick, the Taoiseach (the Irish Prime Minister) made the annual presentation of a bowl of shamrock to the President of the United States (pictured left). I seem to remember being taught in school that the reason the shamrock is one of Ireland’s unofficial national symbols is because St Patrick explained the Christian doctrine of the Holy Trinity by reference to the three leaves of the shamrock. I now work in a College named for the same Holy and Undivided Trinity. So, it might come as little surprise that I have recently been thinking about a trinity, though a rather more secular one. What I have in mind is the constitutional trinity on which many modern states are founded: liberal democracy and the rule of law.

All three elements of this trinity are multi-faceted, contestable, and elusive. Moreover, it is possible to conceive of a state which commits to one of the elements of this constitutional trinity, or even two, but – like a three-legged stool – they have become mutually reinforcing in many modern states, so much so that they often fade into one another both in popular conception and in more considered analysis. However, each element does contain some stability at its core. For the purposes of this post, I mean liberal in the sense that the state is committed to respect for and protection of individual rights; I mean democratic in the sense that citizens participate in government; and I mean the rule of law in the sense that, in a state founded upon a government of laws and not of men, the laws are equally applied in open court by an impartial judiciary.

Traditional free speech theory has tended to focus on only two elements of this trinity. There are many strong justifications for freedom of expression in both the liberal and democratic traditions. The question I want to ask in this post is whether there is a similar justification for freedom of expression in the rule of law, that is, in the third element of the constitutional trinity (or third leaf of the shamrock, or the third leg of the stool). To the extent that notions of liberty and democracy infuse our conception of the rule of law, then that conception will be bound up with liberal and democratic justifications for free speech. However, to the extent that our conception of the rule of law is distinct from notions of liberty and democracy, then the question that arises is whether there is a justification for free speech in this separate conception of the rule of law. This requires two things: first, an assessment of the elements of the rule of law; and, second, an assessment of the extent to which these elements of the rule of law reinforce and are reinforced by robust protection of freedom of expression.

First, I will take the elements of the rule of law as sketched by the late Law Lord, Tom Bingham, in his final book The Rule of Law (Allen Lane, 2010):

  1. The law must be accessible, and so far as possible intelligible, clear and predictable (p37)
  2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion (p48)
  3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation (p55)
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers[,] and not unreasonably (p60)
  5. The law must afford adequate protection of fundamental rights (p66)
  6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve (p85)
  7. Adjudicative procedures provided by the state should be fair (p90)
  8. The rule of law requires compliance by the state with its obligations in international law as in national law (p110).

It is immediately clear that many of these elements of the rule of law both reinforce and are reinforced by robust protection of freedom of expression. On the one hand, Bingham’s fifth point – that the law must afford adequate protection of fundamental rights – reinforces the necessity for the protection of free speech as one of those fundamental rights. On the other hand, his second, sixth and seventh points – which relate to the proper functioning of impartial judicial tribunals – are reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals. Indeed, the ancient principle of open justice is one of the foundations of modern media speech rights. Likewise, Bingham’s fourth and eighth points – which relate to the proper role of government – are similarly reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of government. Indeed, this is the central justification for the watchdog role of the media. Even more fundamentally, his first and third points – which relate to the irreducible minima of good laws – are reinforced by the protection of free speech, which ensures the discussion of laws to ensure that they meet these basic requirements. If this analysis is right, then many of the elements of freedom of expression which we take for granted seem to flow at least as much from the rule of law as they do from liberal and/or democratic free speech justifications.

Finally, to be parochial for a moment, Barrington J in Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 and Murphy v Independent Radio and Television Commission [1999] 1 IR 26, [1998] 2 ILRM 360 tied liberal conceptions of free speech to the Article 40.3.1 right to communicate, and democratic conceptions to the Article 40.6.1 right to freedom of expression. A free speech justification founded in the rule of law might find its home in the Article 34.1 commitment to open justice and the Article 40.6.1 reference to the rightful liberty of expression of the organs of public opinion.

If liberal democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and if there are strong liberal and democratic justifications for freedom of expression, then, in essence, my question is this: are there similarly strong free speech justifications founded in the rule of law? The answer I have floated in this post is that there are. Do you agree? Please exercise your free speech in the comments below.

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