6.‘It is one thing for the Constitutional Court to acknowledge the important role that religion plays in our public life, and quite another for it to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Judges would be placed in an intolerable situation if they were called upon to construe re- ligious texts and take sides on issues that have caused deep schisms within religious bodies.’ (Paragraph  of the judgment). ‘The Constitution contains a number of provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in s 18. Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the ‘right to be different’. In each case, space has been found for members of communities to depart from a majoritarian norm. (Paragraph  ) [Quotes from the headnote of the judgment]. 7.Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC); Prince
The Secretary, Ministry of I &B V. Cricket Association, Bengal with Cricket Association, Bengal V. Union of India 17 is a landmark judgment as is recognises the right to information as part of fundamental right to speech and expression under Art. 19(1) (a). The court observed that a citizen has a fundamental right to use the best means of imparting and receiving information through electronic media. Albeit with a caveat: the airwaves are a public resource and must, therefore, be regulated in the public interest. The court ruled that the freedom and expression includes the “right to educate, inform and entertain. Sport is an expression of self.” 18 The government can impose restriction on such a right only on the grounds specified in Art.19 (2). State monopoly on electronic media is not mentioned in Art.19 (2).
And here is what is problematic for any theory of freedom of expression about the fact that all laws, and all alternative laws, will have profound message effects: if one wishes to claim that a particular law violates a right of freedom of expression, it will not be sufficient merely to show that the law negatively affects one’s ability to communicate effectively one’s message to one’s intended audience. For if that law is excised, its excision will have negative message effects on others even if its excision has positive message effects on you. And even if adjudicators could, contrary to fact, trace the causal implications for messages of having one set of laws rather than an indefinite number of other possible sets of laws, they would then have to evaluate all those competing message effects. And how would they do this while remaining properly neutral with respect to the content of messages?
This paper analysis that access to information and free flow of information needs to be seen as significant part of our freedom of expression jurisprudence . In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from the landmark judgment by Supreme Court in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government ordered blocking of content by internet intermediaries in India, using information gatekeepers to control information access. Our freedom of expression norms need to take this into consideration in addition to their focus on the rights provided by the Constitution to every citizen, since information gatekeepers can be used as tool to censor speech in a n opaque fashion stifling the voice of dissent or disagreement or suppressing the democratic right to question the acts, plans and policies of the government that leaves little scope for accountability. The freedom of the press, while not recognized as a s eparate freedom under Fundamental Rights, is embedded in the freedom of speech and expression. The Supreme Court has described this freedom as the “ark of the covenant of democracy”.
The strength of a democratic group relies on the freedom of press. It is an inalienable right of everyone to remark freely upon any matter of public importance. Freedom of press provides one of the pillars of individual liberty. However, this freedom is not absolute and unlimited at all and subjected to the restrictions contained in Article 19 (2) of the Indian Constitution. As Hon‟ble Supreme Court upheld that it must be so because unrestricted freedom of speech and expression which includes the freedom of press, amounts to unrestrained certificate which would lead to chaos and lawlessness and it would be unsafe to disregard the vital importance of our social and national interest in public order and security of the state, “turn-off now to the virtues, there can be no doubt that freedom of speech and expression includes freedom of promulgation of ideas, and that freedom is ensured by the freedom of spread. “Freedom of circulation is as necessary to that freedom as the liberty of publication. Indeed, without circulation the publication would be of small worth.”In Indian Express News Papers v. Union of India, a three Judge Bench of the Hon‟ble Apex Court emphasised the importance of freedom of press in a democratic society and the role of Courts. This Hon‟ble Court observed that: “In today‟s free world freedom of press is the heart of social and political interaction. The press has now supposed the position of public instructor making formal and non- formal education probable in a huge range predominantly in the developing world; where television and other kinds of modern communications are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgement.” Here it is measure to bring up the explanation made by Justice A.P. Sen in Express News
Freedom of Expression in the Public Schools SMU Law Review Volume 23 | Issue 5 Article 9 1969 Freedom of Expression in the Public Schools Sammuel H Ballis Follow this and additional works at https //s[.]
I will answer this question through three steps: First I will concretise reasons why the prevailing challenges of the nation states also challenges the human right to freedom of expression: On the one hand communication on the Internet is regulated by an immense legal body, but on the other hand, the machinery for enforcement controlled by this legal body is dependent on various agen- cies that don’t necessarily recognize its legitimacy Secondly, I will more fully outline the control- oriented approach to understanding governance and present the case of its advocates, who say that it could be a more fruitful approach in defining the actual limitations to freedom of expression in the new global system. My answer is that ultimately the control paradigm fails, because it is too clumsy at incorporating self-correcting measures. Thirdly, I will suggest that the best solution to the challenges to freedom of expression in the global system must be a Global Government of the Internet, a government that is defined by democratic elections, a constitutional body, and delibera- tive institutions. In the fourth section I will consider the objections that have been raised against similar suggestions, and that possibly could be raised against my own: How is this suggestion go- ing to pass muster with a U.S. government that is extremely wary of global governance, and ex- tremely aggressive about extending U.S. law in all manners concerning the Internet? How are we going to attach an enforcement mechanism to the global government of the Internet? Lastly, what relationship should exist between the global governance of the Internet and expressions that hap- pen behind the walls of closed communities? In my fifth and final section, I will summarise the find- ings of the paper.
This ability or not to unblock filtered content raises important issues around privacy and freedom of expression. In a library context, an argument posited is that all a patron needs do is ask the librarian to unblock any legitimate material that is being withheld by the filtering software, but this is a naïve argument. Consider how many patrons may be too embarrassed to ask a librarian about issues like sexuality; indeed, this may be the primary reason why they have chosen the Internet as their information source as it offers relative anonymity and privacy. Being confronted with a screen blocking access to information is unlikely to have such a patron politely chatting to the person in charge to have their information provided, regardless of their approachability. It could be accurately argued that many organizations ventured down the filtering route to protect the organization rather than in a bid to halt intellectual freedom, but this makes the decision even more problematic for an ethical professional.
At the same time, however, few think that the right to freedom of expression should be unrestricted. Relatively uncontroversial limits include laws against libel and slander, against incitement to criminal acts, and against sedition and treason (see Meiklejohn 1948: 18). Even J S Mill, frequently cited in support of freedom of expression, recognizes the need to be clear about its limits: ‘No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act’ (1859: 56). Here Mill does not seek to identify a particular type of expression – such as incitement to religious hatred – and argue that all expressions of this type may rightly be prohibited. Rather he suggests that it is the particular circumstances in which an opinion is uttered that determine whether or not it should be
Some privacy rights are a direct restriction on the freedom of expression. It is, for entail example, not possible to publish anything about anyone. In this conference paper, however, the focus lies on a more indirect relationship between these rights. I will explore how privacy rights, the right to decide on what kind of information is shared (‘informational privacy’), may indirectly lead to restrictions on freedom of expression rights. To achieve this, I will first discuss ‘anonymity’ and ‘privacy’ as concepts. What does it mean to ‘have’ privacy? What does it mean to remain anonymous? How did these rights change over
ABSTRACT: Freedom of speech and expression is the root of all liberties. It is one of the fundamental natural right of human being. This freedom has various facets like freedom of press, information, commercial advertisement etc. There are various leading cases which have been analysed by this essay as “Law is what the judges declare , that statutes, precedents, the opinions of learned experts, customs and morality are the sources of law.” Researcher discusses this concept with reasonable restriction in order to maintain the integrity of its constitutional system along with harmony in society ,the government must protect both equality and free expression.
Abstract: Tools for mass communication influence on creating and channeling of public opinion for every segment of social life; in era of globalization they erase the borders of events in sphere of information. Freedom of expression is in tight connection with media culture in a country, even there are national law provisions, European and international letters and declarations, which is an expression of democratization of her institutions. Pluralism of interests is in danger if there is a partisanship of media, concentration of power from financial oligarchy, selective approach to topics selection and to sources of information and ideologization of media content, especially in countries in transition like Republic of Macedonia is. Then, that influences on decreasing of the awareness of the critical opinion, and media expression can- through reduced, transformed and unilateral approach- to manipulate public opinion. This media reality is pushed to be the ideology of a new collective single- mindedness and is in conflict with the system of values which is the conflict of old and new European values and with no creative approach. Reform of media sphere in Republic of Macedonia in the process of Euro- integration should move towards the democratization of organizational placement, better independency of the editorial policy, elimination of the influence of business oligarchies and political influences, and in the same time standardization of the quality and diversity of media contents.
It is important to eliminate the conflict between serving business interests and providing information for adequate de- mocratic decision-making. The fact, for instance, that there should be mass media companies in the United States owned by arms companies (such as GE and Westinghouse) and financial elites that profited from the economic mismanagement of the recent years, can only seem coincidental to the naïve. Better information would have made making war and building an $8 trillion bubble more difficult. There are other features, such as limiting the market share a media company or conglomerate may have. An experiment being tried in some countries of South America is to divide the television and radio electro- magnetic spectrum into three equal parts, those being for pri- vate, public and community ownerships. Regulation in cam- paign finance so that people can really be autonomous knowl- edgeable agents participating rationally in the democratic proc- ess, rather than be manipulated by the moneyed or other inter- ests, is a feature of conditions that truly honor the right of free- dom of expression. A system where rational choice theory is made Ptolemaic, as Ferguson (1995) has described it as applied to the US political system, 17 is one which undermines, rather than respects, the right of freedom of expression of people. There are various alternatives within this option (Lawrence, 2011; Rowbottom, 2010), but the driving consideration is that autonomous self-determining people do the talking, rather than peopled flooded by party propaganda or the interests of capital- ists. This is true autonomy and self-determination.
When the writings of the post-crisis era are considered in their entirety, the Mill who emerges is very different from that presented by Himmelfarb. Far from being a committed elitist and an enemy to free discussion at this stage of his mental progress, Mill seems to have maintained his viewpoint regarding the necessity of the liberty of the press and freedom of thought and discussion. In fact, when outlining in the Autobiography the reason for the later breakdown of his relationship with Comte, it is their disagreement over precisely this issue to which Mill points.^^ Noting that they agreed on the necessity of ‘the moral and intellectual ascendancy’ passing into the hands of philosophers (once they became ‘worthy to possess it’). Mill adds ‘But when he exaggerated this line of thought into a practical system, in which philosophers were to be organized into a kind of corporate hierarchy... we could travel together no further’. He then describes Comte’s plans, outlined in his Système de politique positive (1851-54), as ‘the completest system of spiritual and temporal despotism, which ever yet emanated from a human brain... a system by which the yoke of general opinion, wielded by an organized body of spiritual teachers and rulers, would be supreme over every action... every thought, of every member of the community’. Mill could not find it within himself to support such a system. What he attempted to do following his mental crisis was to fuse the best of the ideas garnered from French thought with the best of the ideas of his own upbringing and education. He never abandoned his commitment to freedom of thought and discussion in the process, but attempted ever to weave his thought anew. The tmth of such a claim is evident in the works examined here, where the theme of intellectual freedom plays a prominent role, implicitly if not explicitly.
Fundamental rights and freedoms are not absolute (Carpenter, 1995). Their boundaries are set by the rights of others and by the legitimate needs of society. In the South African Constitution, a general limitation clause- section 36- sets out specific criteria for the restriction of the fundamental rights in the Bill of Rights. The existence of a general limitation clause does not mean that rights can be limited for any reason. The reason for limiting a right need to be exceptionally strong. The limitation must serve a purpose that most people would regard as particularly important (Meyerson, 1997). But, however important the purpose of the limitation, restrictions on rights will not be justifiable unless there is good reason for thinking that the restriction would achieve the purpose it is designed to achieve, and that there is no other way in which the purpose can be achieved without restricting rights. “A free responsible press is one of society’s greatest assets. The press is the artery through which a democracy’s lifeblood flows, exposing corruption, dishonesty and maladministration. Thus the press has to be the watchdog, inciting the inert and curbing the over-eager. Effective freedom of press would be frustrated if freedom of expression is limited in such a way as to intimidate the media into not publishing” (Klopper, 1979).
There are different justifications for various countries to make use of these enhanced forms of criminal inves- tigative techniques, inter alia, technological innovations, national security, and crime prevention. In the prevention and investigation of crimes, states utilize multiple techniques which might violate an individual’s right to privacy. However, these techniques have an intrusive nature on the privacy on individuals and other related rights such as to freedom of expression, the right to freedom of association and assembly, the right to freedom of movement and the due process rights and even affects the principle of separation of powers. It is necessary, therefore, to strike the balance as to what extent the privacy and other related rights of individuals can be respected while protecting safe from effects of crime. Basically, for a given criminal justice system to use those investigative tools, with due consideration of the potential threats, it should be covered by a specific laws and empowers a given body to au- thorize and supervise as to the necessity and proportionality of government’s measures.
One basic fact that cannot be faulted when we talk about Press Freedom is that the form of political system that operates in a particular society determines the type of press it gets and by extension, the type of relationship that exist between such government and the press. This paper will analyze two theories of the Press: the Libertarian Theory otherwise known as Free Press Theory by McQuail (1987) and the Social Responsibility Theory as enunciated by Hutchins's Commission (1947). The Free Press Theory is the exact opposite of the Authoritarian Theory and it believes that people are rational beings capable of independent thoughts. Therefore, man should be allowed considerable degree of freedom to develop his interest which might be different from other members of the society. Its advocacy, according to Ifeanyi (1999:8) is for freedom of expression and access to various ideas from which people can choose. The Libertarian system stresses the need for an open market place of ideas which rests on the assumption that citizens can freely express their ideas without any molestation.
The freedom of expression in different countries has to meet the international obligations set out in Article 19 of the International Covenant for Civil and Political Rights 1966 (ICCPR) and the Declaration against Elimination against all forms of Discrimination. In the cartoon controversy in Denmark, the public interest was deemed to override that of the hurt sentiments of the Muslim community. There was no criminal offence deemed in the circumstances and no charges were brought against the Jyllands-Posten newspaper. It was grossly offensive and was not prosecuted under the blasphemy offence or under any of the public order legislation. This is a defence of justification that is based on a human rights criteria that draws its inspiration from Article 10 of the European Convention of Human Rights 1952 (ECHR), which has been interpreted as upholding the right to be offensive in satire. It provides a right to demean a public personality in ostensibly vulgar terms. However, this is not acceptable where the religious/racial minority is disparaged because it could lead to hate crimes against it and marginalise it in the community. In the UK Racial and Religious Hatred Act 2006 (RRHA), the minorities who are subject to hate crimes have received statutory protection by the extension of the Public Order Act 1986 (POA) Part III. For the insult to be criminal it has to satisfy the requirement of Section 5(1) (b), that the person has been threatened, abused or insulted by words, deeds or symbolic actions. If that is carried out by the representation in the form of published materials for consumption inciting racial hatred then it becomes a punishable offence under Sections 28 and 31 of the Crime and Disorder act 1998. The breach of this section led to the conviction in the Norwood case where the Article 10 defence under the ECHA was not accepted by the courts. However, the ambit of these Acts has not been sufficient for the protection of a minority from a political group, as the acquittal of the BNP leaders in Griffin and Collett (2005) shows. Their argument was that their attack was on the belief system rather than the race itself. It was not culpable because it was part of engendering debate in society that was permissible by its democratic framework.
Freedom of speech and expression and its relation with RTI has been vividly described by the apex court in Secretary, Ministry of I & B, Government of India v. Cricket Association of Bengal 27 in the following words: "The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self - fulfillment. It enables people to contribute to debates on moral and social issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy."In this case the Supreme Court made it clear that the right to acquire information and to disseminate it is included in Article 19 (1) (a) of the Constitution. Right to information is only vehicle of political discourse also essential to democracy. This right has various shades in the context of democracy. Voters right to know antecedents of contesting candidates is also a facet of Article 19 (1) (a) of the Constitution. In this case the right to impart and receive information from electronic media was included in freedom of speech. So by this way, the Judiciary has by interpretative craftsmanship evolved the right to information as a fundamental right.
Ibn al-Ashur was one of the first most renowned modern-era scholars to open the door for re-interpreting the ‘Theory of maqasid’ in general and ‘Theory of protection of religion’ in particular. In previous periods scholars like Al-Juwaini used the terminology ‘protection of Religion’. In modern days Ibn al-Ashur put forward a dramatically different concept for the word ‘Hifl al-deen’. He preferred to use different terminologies such as ‘Freedom of faith’ and ‘Freedom of belief’ instead of ‘protection of religion’ (Ibn al-Ashur, 2011). After Ibn al- Ashur, presenters of this perception frequently quote the following Quran verse in their writings: ‘No compulsion in matters of religion’ (Al-Baqara 256). They also have a different kind of interpretation for the punishment of apostasy (Had al-riddah) and their arguments will be analysed briefly in the following topic. Ibn al-Ashur emphasized in his book ‘Maqasid al-shariah’ on re-interpreting some words like freedom. For instance, the meaning of freedom which was proposed by him is different from freedom which was mentioned by traditional jurists. Ibn al-Ashur included freedom of thought, expression, belief and action in this particular terminology (Ibn al-Ashur, 2011). After Ibn al-Ashur, a number of scholars tried to expand the theory of freedom and paid special attention to freedom of belief. Rashid al-Ghanuchi had a deep discussion on how we could interpret the terminology ‘Freedom of belief’ (Ghanuchi, 1993). Furthermore, he has been playing a vital role in applying freedom of belief in Tunisia’s context since the Arab spring although his approach is being criticized by few scholars.