The Dilemma of Positive Legislator or the Difficulties of the Constitutional Procedural Law
| Autor | Anamaria Bianov; Oana Şaramet |
| Páginas | 163-179 |
Anamaria Bianov. Assistant at the Department of Law from the University “Transilvania” in Brasov, specialized in Communication Legislation and Constitutional Law
Oana Şaramet. Lecturer at the Department of Law from the University “Transilvania” in Brasov, specialized in Constitutional Law and Administrative Law and councilor at the Territorial Bureau Brasov of the Romanian Ombudsman, “The Advocate of the People”
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Freedom of speech can be defined in a few words as being able to speak freely without censorship. The synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Since we agree upon this juridical perspective, hereby we refer to this individual right as freedom of expression. The right to freedom of expression is guaranteed under international law through numerous human-rights instruments, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries. Thus, Article 19 of the Universal Declaration of Human Rights settles that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless the frontiers, while Article10 of the European Convention of Human Rights: (1) Everyone has the right toPage 164 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. (2) The exercise of these freedoms, since it carries with it 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. All this international documents were ratified by Romania. Therefore they are part of the intern law as stipulated in art.11 of the Constitution of Romania: “(1) the Romanian State pledges to fulfill, as such and in good faith, its obligations as deriving from the treaties it is a party to; (2) treaties ratified by Parliament, according to the law, are part of national law; (3) if a treaty Romania is to become a party to comprises provisions contrary to the Constitution, its ratification shall only take place after the revision of the Constitution”. According to Art.20, paragraph 1, “Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the convenants and other treaties Romania is a party to”, whereas paragraph 2 settles that „Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions”.
Freedom of expression finds its explicit expression in the Romanian Constitution in Article 30 that states the following: (1) Freedom of expression of thoughts, opinions, or believes, and freedom of any creation, by words, in writing, in pictures, by sounds or other means of communication in public are inviolable. (2) Any censorship shall be prohibited. (3) Freedom of the press also involves the free setting up of publications. (4) No publication shall be suppressed. (5) The law may impose upon the mass media the obligation to make public their financing source. (6) Freedom of expressionPage 165 shall not be prejudicial to the dignity, honor, privacy of a person, and to the right to one's own image. (7) Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law. (8) Civil liability for any information or creation made public falls upon the publisher or producer, the author, the producer of the artistic performance, the owner of the copying facilities, radio or television station, under the terms laid down by law. Indictable offences of the press shall be established by law.
In practice, the right to freedom of speech is not absolute in any country, although the degree of freedom varies greatly. Industrialized countries also have varying approaches to balance freedom with order. For instance, the United States First Amendment theoretically grants absolute freedom, placing the burden upon the state to demonstrate when (if) a limitation of this freedom is necessary. In almost all liberal democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle is often lacking. One justification for free speech is a general liberal or libertarian presumption against coercing individuals from living how they please and doing what they want. However, a number of more specific justifications are commonly proposed. For example, Justice McLachlin of the Canadian Supreme Court identified the following in R. v. Keegstra, a 1990 case on hate speech: (1) Free speech promotes "The free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms; (2) It promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualization of speakers and listeners; (4) It is justified by the dangers for good government of allowing its suppression1. Such reasons perhaps overlap. Together, they provide a widely accepted rationale for the recognition of freedom of speech as a basic civil liberty. A very interesting point of view can be encountered at C Edwin Baker. Baker is perhaps the most consistent and eloquentPage 166 defender of radically protective liberal first-amendment theory in the legal academy. His book, “Human Liberty and Freedom of Speech”, represents Baker's most comprehensive effort to defend, on the basis of liberal theory, "' broad realm [of protection for] nonviolent, non-coercive, expressive activity. The book is filled with many extensive descriptive passages concerning political science theories, court cases, and historical developments which are very interesting, though on a few occasions not entirely accurate. C. Edwin Baker “is classified as a leading modern proponent of the marketplace tradition”. In fact, Baker’s book, “Human Liberty and Freedom Of Speech”, articulates a liberty theory of freedom of speech and contests the “marketplace of ideas” theory of the First Amendment. “Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom … Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests”2.
Each of these justifications can be elaborated in a variety of ways and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications, or a justification relating to self-governance. They relate to aspects of free speech's political role in a democratic society. The second is related to the discovery of truth. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy.
This analysis suggests a number of conclusions. First, there are powerful overlapping arguments for free speech as a basic political principle in any liberal democracy. Second, however, free speech is not a simple and absolute concept but a liberty that is justified by even deeper values. Third, the values implicit in the various justifications, for free speech, may not apply equally strongly to all kinds of speech, in all circumstances.
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Freedom of speech is crucial in any participatory democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms...
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