A critique of audience rights to receive information and ideas under a democratic interpretation of freedom of expression: the stance of the Strasbourg Court

Fenwick, Helen

Abstract

This chapter concerns the rights of the "listener" to receive information, ideas, opinions. It will consider a range of ways in which a democratic interpretation of freedom of expression, understood here as the freedom to receive information and ideas, can be found to lead in certain instances to curbing political expression in the interests of furthering democracy. By political expression will be meant expression that informs the audience and enables debate on political matters broadly conceived – including matters of general public interest – enabling the audience to make informed decisions on such matters, of especial significance at election times. The value of political expression is well established, both in the literature and judicially. Starting from a definition of democracy as active and mediated self-rule by citizens, the view of certain writers is that, for citizens to experience government as their own government, each person must ‘have the warranted conviction that they are engaged in the process of governing themselves.’ Under this view the state is responsive to the values of each citizen and each individual has the potential to influence the outcome of public discourse through her ideas and arguments: each person participates in collective self-determination which dictates that rights of the audience to receive information and ideas must trump the claims from groups whose feelings are ‘injured’ by speech. Where, however, such claims prevail, there is, following Robert Post in particular, a significant loss to the democratic legitimacy of decision-making. The accepted importance of political freedom of expression has influenced Strasbourg, which has in turn also added its jurisprudential voice to the global debate. That has meant that challenges at Strasbourg to laws directly interfering with the freedom of the audience to receive information and ideas will probably succeed where such expression is at stake unless such interference is claimed in itself to enhance participation in the democratic process or necessary generally to protect a democratic society. As a result, at Strasbourg expression may be valued instrumentally for the benefits it brings to democratic participation. That means that some restrictions on political expression have been accepted at Strasbourg as aimed at securing the more effective participation of the audience in the democratic process or at protecting a democratic society more generally. But as this chapter will argue, such restrictions may be enabled at Strasbourg to encroach disproportionately on receipt of political expression or information and therefore may not achieve the end in question.

Citation

Fenwick, H. (in press). A critique of audience rights to receive information and ideas under a democratic interpretation of freedom of expression: the stance of the Strasbourg Court. In C. Girard, & P. Auriel (Eds.), Freedom of expression and democracy in Europe. Oxford University Press

• Deposit Date: Aug 10, 2022
• Publisher: Oxford University Press
• Book Title: Freedom of expression and democracy in Europe
• Public URL: https://durham-repository.worktribe.com/output/1621285
• Publisher URL: https://global.oup.com/academic/?cc=gb&lang=en&
• Contract Date: Aug 10, 2022