A structure for comparative analysis of Freedom of Expression

Prof Adrienne Stone, CCCS, via their websiteProf Adrienne Stone (pictured left), Director of Centre for Comparative Constitutional Studies in the Melbourne Law School has just made a very interesting article available on SSRN. It is The Comparative Constitutional Law of Freedom of Expression, forthcming as a chapter is in Rosalind Dixon and Tom Ginsburg (eds) Research Handbook in Comparative Constitutional Law (Edward Elgar, forthcoming, 2011). Stone argues:

Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents. … Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems … – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law. In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right.

… some scholars … question whether … the comparing free speech principles across constitutional systems is practical or useful for courts interpreting or applying constitutional principles of freedom of expression … The complexity of (and disagreement about) underlying philosophical commitments, the opacity of judicial decision making, and cultural specificity of any particular body of law, … [are] formidable problems for the comparativists, … and the] case for comparativism may be weaker in relation to constitutional principles have developed their own rich set of resources and a distinctive conception of freedom of expression. This latter description fits the First Amendment most neatly … [B]ut, outside of such contexts, the case for comparativism is much stronger. It is not surprising, then, that constitutional comparativism in freedom of expression cases as well as in other areas [is] certainly very widespread. … Successful comparativism within the field of freedom of expression, as elsewhere, requires a rather deep and critical engagement with foreign law that encompasses critical legal and philosophical literature on freedom of expression as well as case law. There is thus an increasing need for a research ‘infrastructure’ of informed, critical and widely comparative studies of freedom of expression that can support this comparative task.

I entirely agree with that last sentence. But that is the last sentence of the paper, suggesting that Stone is skeptical about the present existence of such an infrastructure. She does not need to be. In my view, there is a basic pattern of analysis when a right protected by a document of fundamental status (such as a Constitution or the European Convention of Human Rights) is potentially infringed or restricted by a statutory provision. It consists of four enquiries.

First, consider the restriction. Without a provision that infringes upon a constitutional right, there would be no need for this analysis.

Second, consider what rights the restriction might infringe. If speech rights are involved, then, in Ireland, that will be the right to express freely convictions and opinions Article 40.6.1.i of the Constitution, the (unenumerated) right to communicate in Article 40.3.1, or the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas, in Article 10(1) of the European Convention on Human Rights.

Third, since no right is an absolute, consider whether there are good reasons for the restrictions. The text of Article 40.6.1.i provides at least six: public order, morality, the authority of the State, blasphemy, sedition and indency; Article 40.3.1 protects rights only “in so far as practicable”; and the rights in both sections have been made subject by the judiciary to the exigencies of the common good. Article 10(2) has an extensive list of reasons for restrictions necessary “for 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”. Any restriction must therefore pursue one of the iterated good reasons or “legitimate aims”, and that aim must be a serious one – there must be a “pressing social need” on the facts to trigger the trigger the relevant good reason legitimate aim. If there is no such good reason, legitimate aim, or pressing social need, then the restriction upon the relevant speech right will be unconstitutional or incompatible with the Convention.

Fourth, it is not enough that the State can simply point to one of the recognised good reasons justifying restrictions; it must also demonstrate that the restriction does not go too far. In other words, the restriction must survive a standard of scrutiny or review. In Ireland, the Supreme Court has established that a restriction upon a constitutional right must be proportionate to the reason underlying it, a standard which is informed by the approach of the European Convention on Human Rights.

As a matter of principle then, a four-part analytical structure can be identified: if there is a restriction upon the right to freedom of expression, the State must have a good reason to justify the restriction which can withstand scrutiny or review. These four Rs of constitutional review can easily provide the foundation or context of the research infrastructure of informed, critical and widely comparative studies of freedom of expression quite-rightly envisaged in Stone’s excellent article.