The Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom.
While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.
Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.
The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.
In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression. In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.
One of the main criticisms of the democratic justification/collective interest which Law LJ advances is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point.
I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).
Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?
None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker. While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.
My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.
Jacob Rowbottom is a Fellow of University College, Oxford.
This post originally appeared on the UK Constitutional Law Association Blog and is reproduced with permission and thanks