Comparative Perspectives

on the Fundamental

Freedom of Expression

Edited by András Koltay

Wolters Kluwer • Budapest, 2015

Published by

Wolters Kluwer Ltd.

Hungary, 2015

Prielle Kornélia u. 21–35., 1117 Budapest, Hungary

Phone: +36 (40) 464-565

Fax: +36 (1) 464-5657

e-mail: info@wolterskluwer.hu

www.wolterskluwer.hu

Published with assistance from

the Institute for Media Studies of the Media Council of the National Media

and Infocommunications Authority

and

the Media Studies Research Group, Hungarian Academy of Sciences

ISBN 978 963 295 533 9

Product code: YEB1610

All rights reserved. No part of this book may be reproduced by any means, or transmitted or translated into machine language without the written permission of the publisher.

Authors:

Richard Albert

András Koltay

Merris Amos

Joanna Kulesza

David A Anderson

Péter Nádori

Judith Bannister

Stefanie Pukallus

Balázs Bartóki-Gönczy

Kevin W Saunders

Uladzislau Belavusau

Andrej Školkay

John Campbell

Péter Smuk

Anne SY Cheung

Geoffrey R Stone

Ian Cram

Jeroen Temperman

Anthony L Fargo

Zoltán Tóth J

David Goldberg

Dirk Voorhoof

Jacqueline L Harrison

Russell L Weaver

Ulrike I Heinrich

Rolf Weber

Robert A Kahn

Editor:

András Koltay

The following papers were originally published here:

Geoffrey R. Stone, ‘Free speech in the twenty-first century: ten lessons from the twentieth century’ 36 Pepperdine Law Review 273 (2008–2009)

Dirk Voorhoof, ‘Freedom of journalistic newsgathering, access to information and protection of whistleblowers under Article 10 ECHR and the standards of the Council of Europe’ In Journalism at Risk (Council of Europe, 2015)

The following, now revised and greatly expanded papers were originally published here (under different titles):

András Koltay, ‘The concept of media freedom today: new media, new editors and the traditional approach of the law’ 7 Journal of Media Law, no. 1. (2015) 36.

Russell L. Weaver, From Gutenberg to the internet: Free speech, advancing technology and the implications of democracy (Carolina Academic Publishers, 2013)

© Richard Albert, Merris Amos, David A Anderson, Judith Bannister, Balázs Bartóki-Gönczy, Uladzislau Belavusau, John Campbell, Anne SY Cheung, Ian Cram, Anthony L Fargo, David Goldberg, Jacqueline L Harrison, Ulrike I Heinrich, Robert A Kahn, András Koltay, Joanna Kulesza, Péter Nádori, Stefanie Pukallus, Kevin W Saunders, Andrej Školkay, Péter Smuk, Geoffrey R Stone, Jeroen Temperman, Zoltán Tóth J., Dirk Voorhoof, Russell L Weaver, Rolf Weber, Budapest, 2015

© Wolters Kluwer Kft., Budapest, 2015

Introduction

In 2012 the Hungarian Academy of Sciences established the Media Studies Research Group for the management of various social scientific research activities related to the media. Activities related to media law are of paramount importance among these, not least because of the rapid and major changes taking place in the field of media regulations, the many open questions that arise both at the national and the European level and the disputes related to the media regulations. The Academy hopes that this initiative will enable the research team to conduct studies that are significant on a European scale, as well as to participate in international exchanges related to the subject.

In 2013 the research group launched a research programme in law entitled “The fundamentals of European thought on media law”, which is scheduled to run until 2016. The programme includes the publication of several independent papers and volumes of studies, as well as the organisation of conferences. It consists of several research projects covering several distinct legal fields. We hope that this diverse approach will allow both the researchers and their readers to distinguish the fundamentals of European thought on media law, to identify the possible models for the resolution of the various questions that arise, to understand the “common minimum” of European regulations that is present in all countries and to establish whether “best practices” exist in these areas and, if so, what they are. Besides identifying the various European approaches, it is at least as important to examine the legal system of the United States and, possibly, some other legal systems that are relevant from the European viewpoint, and to study the interactions between them.

The Academy invited distinguished scholars from many countries working in the field of media and free speech law to take part in the research programme and to send manuscripts for a planned publication of a collection of essays. The participation of diverse authors from various countries and backgrounds has greatly contributed to the value of the research.

* * *

The book entitled Media Freedom and Regulation in the New Media World (Budapest: Wolters Kluwer, 2014) was published in 2014 as a result of the research team’s work. The studies included in this book were also presented by the authors themselves at a conference held in Budapest in April 2015 (the video recordings of the lectures are available at www.newmediaworld.hu). And now a new, even thicker book is about to be published, the continuation of the first volume, presenting chapters addressing a great variety of media law and freedom of speech issues.

The book is composed of six larger structural units dealing with (1) the fundamental theoretical questions of freedom of the press, (2) the regulation of new media, (3) the legal status of journalists, (4) the means available to the European Union to safeguard and regulate freedom of the press, as well as the eternal, fundamental questions of freedom of speech, (5) the law on defamation and the protection of privacy, and lastly, (6) the limitation of hate speech, including the problems related to blasphemy and “denial laws”.

The authors are, without exception, noted and recognised experts in their respective fields; scholars and university lecturers. We are greatly honoured they accepted the invitation of the Hungarian Academy of Sciences to participate in this project. It is a special privilege that many authors from the United States accepted our invitation as well. The legal approach and jurisprudence of the USA have an unquestionable role in European freedom of the press-related legal thinking, even though the solutions chosen in the different European legal systems or in the European Union often greatly differ from the legal solutions applied overseas.

Since the authors come from numerous different countries, their viewpoints are also quite diverse and multifaceted. The texts address the most topical and important issues of media regulation and freedom of speech, including (among others), the legal liability of the intermediaries in the media market (Internet service providers, search engines) or even the legal perception of drones, being one of the new technical tools available to journalists, not to mention the questions put into the limelight again as a result of the Charlie Hebdo murders. Several of the papers focus on the legal problems related to the ‘new media’, i.e. the services available on the Internet. Another part of the questions examined is not new, but still, given the modern, Western approach to freedom of the press, it cannot be circumvented. These issues, such as the limits of freedom of speech or the latest adjustments and amendments to the democratic freedom of the press theory, need to be scrutinised time and time again.

Freedom of the press and media regulation in democratic countries, by their nature, cannot be static, but are constantly changing. Still, a book such as this one must be closed and delivered to the readers at some point. Nevertheless, the editor of this volume can do so with the reassuring thought that the conclusions drawn in these studies will defy time and remain valid for a long time. These writings not only keep for posterity a specific part of the current scholarly standpoints and record a snapshot of the cross-section of current press freedom-related issues, but also they can even actively form scholarly and public thinking about these questions. We hope they will prove to be a great source, thanks to their conclusions standing the test of time, for international readers, such as researchers, university students and media policy decision-makers, who are interested in the legal aspects of freedom of the press.

Budapest, August 28, 2015

András Koltay

editor

1. Fundamental issues
of free speech and press freedom

Richard Albert

The unamendable core of the United States Constitution1

Introduction

In a series of earlier Articles on the structure of constitutional amendment, I have taken the position, which I hold still today, that unamendability poses significant challenges to democratic constitutionalism. The concept of unamendability, which refers to a formally entrenched provision or an informally entrenched norm that prohibits an alteration or violation of that provision or norm, raises fundamental questions in constitutional law implicating sovereignty, legitimacy, democracy and the rule of law.2 In my view, unamendability undermines the basic promise of democratic constitutionalism because it limits the universe of constitutional possibilities open to those whom the constitution governs.3 Unamendability, I have argued, withholds from citizens ‘more than a mere procedural right’ to amend the constitution; it ‘hijack[s] their most basic of all democratic rights’.4 I have also suggested that constitutional rigidity becomes a defect where it makes amendment impossible,5 and I have illustrated how unamendability confers upon courts disproportionately vast powers in comparison to those exercised by coordinate branches.6

As a matter of constitutional theory, I therefore resist unamendability as a democratically legitimate constitutional design. But I have often wondered whether I could on any practical basis justify some form of unamendability, however limited, as a necessary feature of democratic constitutional design. After all, all rules admit of exceptions, especially in law where the justification for an exception often strengthens the need for a rule of general application. In much the same way, I wonder whether a strong proceduralist committed to democratic first principles could conceivably, even if reluctantly, find value in the political utility of a particular manifestation of unamendability while nonetheless defending a general rule against it.

In this Article, I inquire whether the United States is one such example. I ask specifically whether anything should be regarded as unamendable in the United States but I pose the question in a particular way. The question I wish to explore is narrow but important, and it requires constraining the parameters of the inquiry in order to force an answer at a very low level of abstraction rather than to satisfy ourselves with an answer that remains at a high level of theory.

My objective is to ask whether the United States Constitution should require some form of unamendability, either explicit or implicit, in order to survive according to its own terms. I conclude that the Constitution may indeed require the implicit unamendability of the First Amendment’s protections for democratic expression,7 which I suggest forms the unamendable core of the United States Constitution. I also inquire into the capacity of courts to enforce unamendability in the United States, and I suggest in closing that unamendability may be more effective as an expressive declaration of importance than as a referent for judicial enforceability.

I note, before proceeding, that my choice to focus exclusively on the United States Constitution is driven by both prudence and what I perceive to be necessity. One could certainly advance the claim that democratic expression is an unamendable core of all democratic constitutions, and proceed then to draw from bills of rights around the world to build the case that democratic expression, even where it is not absolutely entrenched, should be unamendable. But I prefer to approach the comparative enterprise with modesty in the face of real differences in the constitutional traditions that underpin constitutional texts, particularly where, as here, the task is to evaluate what holds foundational yet particularised importance in a given constitutional regime.8

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