LCR4803____Media_Law___Study_guide_qa

Study Unit 2 Freedom of speech: the underlying philosophy 1 ‘‘Free speech is to the advantage of the individual personally.’’ Critically discuss the theory on free speech as a basis for self-realization and individual autonomy, with reference to this statement. (10) Because this theory springs from the classical theory on truth, the discovery of truth is also important in this case. However, according to Meiklejohn (1948:88–89), truth is not our deepest need. Far more essential, if men are to be their own rulers, is the demand that whatever truth may become available shall be placed at the disposal of all the citizens of the community. The First Amendment is not, primarily, a device for the winning of new truth, though that is very important. It is a device for the sharing of whatever truth has been won. Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal. The democracy theory requires that there should be a democracy, that is a system of regular and open elections, general franchise and majority rule. The fact that this form of government gives the population the right to be wrong is very important. Free speech is an indispensable component of such a system for two reasons: (1) The voters should receive information freely to enable them to participate in an intelligent decision-making process. Voters cannot vote intelligently without being fully informed. Therefore the refusal to make information available is just as serious an infringement of the community’s democratic rights as it is to withhold the franchise. (2) The sovereignty of the people means that government officials become servants and not rulers. Leaders are in the employment of the nation and free communication gives the nation a way of making its wishes known to the government of the day. If the conduct of government officials can be criticised, they can be called to account. In accordance with the above, it is evident that a government which is also censor creates an anomaly. The maxim of natural justice, nemo debet esse iudex in sua propria causa (no one is fit to be the judge in his own cause) applies directly in this case. When speech is regulated in positive law, it is often precisely the problem of whether the government should be allowed to determine what should be suppressed and what not, which comes to the fore. The principle that the voters alone should have the right to distinguish between truth and falsehood or between acceptable and unacceptable is part and parcel of the concept of the sovereignty of the people. If we acknowledge that voters have the right to be wrong, we have to agree further that the possibility of making a mistake should not be the basis on which to refuse people access to information which may influence their views. This approach at the same time reveals the central weakness in Meiklejohn’s exposition. If, as a group, the people are sovereign, and if this sovereign unit has all the unlimited power normally associated with sovereignty, we have to assume that this sovereign supreme unit will also have the power to restrict freedom of speech in the same way as it can limit any other freedom. Furthermore, if freedom of 1 | P a g e speech is necessary to maintain a democracy, how should we explain the fact that the freedom of speech of an antidemocratic minority must also be acknowledged? 2 What is meant by internal censorship? Does the media make use of this form of censorship? Discuss briefly. (5) In this instance, individuals or instances come to a mutual agreement, without any legal duty being imposed upon them, to submit themselves voluntarily to certain restrictions on the information they may distribute. Such forms of voluntary censorship may be found in the case of the Newspaper Association of South Africa (NA) and the Advertising Standards Authority where members commit themselves to the acceptance of a specific set of rules or a code of conduct. There are sanctions for those who transgress these norm systems, such as a pecuniary fine in the case of the Newspaper Association. 3 ‘‘Freedom of speech is justified on the basis of the advantage it holds for either the community or the individual.’’ Discuss the validity of this statement by referring to one of the speech theories which is directed towards the interests of the community. Also refer to the criticism that can be levelled against the specific theory. (10) The Theory of free speech based on participation in democracy Background As the name indicates, a prerequisite for the application of this theory is the existence of a specific type of state organisation based on democracy, and it cannot be applied to an autocracy, oligarchy or theocracy. It is probably the most popular theory of free speech presently in circulation in modern Western democracies. Content of the theory Because this theory springs from the classical theory on truth, the discovery of truth is also important in this case. However, according to Meiklejohn (1948:88–89), truth is not our deepest need. Far more essential, if men are to be their own rulers, is the demand that whatever truth may become available shall be placed at the disposal of all the citizens of the community. The First Amendment is not, primarily, a device for the winning of new truth, though that is very important. It is a device for the sharing of whatever truth has been won. Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal. The democracy theory requires that there should be a democracy, that is a system of regular and open elections, general franchise and majority rule. The fact that this form of government gives the population the right to be wrong is very important. Free speech is an indispensable component of such a system for two reasons: (1) The voters should receive information freely to enable them to participate in an intelligent decision-making process. Voters cannot vote intelligently without being fully informed. Therefore the refusal to make information available is just as serious an infringement of the community’s democratic rights as it is to withhold the franchise. 2 | P a g e (2) The sovereignty of the people means that government officials become servants and not rulers. Leaders are in the employment of the nation and free communication gives the nation a way of making its wishes known to the government of the day. If the conduct of government officials can be criticised, they can be called to account. Criticism In accordance with the above, it is evident that a government which is also censor creates an anomaly. The maxim of natural justice, nemo debet esse iudex in sua propria causa (no one is fit to be the judge in his own cause) applies directly in this case. When speech is regulated in positive law, it is often precisely the problem of whether the government should be allowed to determine what should be suppressed and what not, which comes to the fore. The principle that the voters alone should have the right to distinguish between truth and falsehood or between acceptable and unacceptable is part and parcel of the concept of the sovereignty of the people. If we acknowledge that voters have the right to be wrong, we have to agree further that the possibility of making a mistake should not be the basis on which to refuse people access to information which may influence their views. This approach at the same time reveals the central weakness in Meiklejohn’s exposition. If, as a group, the people are sovereign, and if this sovereign unit has all the unlimited power normally associated with sovereignty, we have to assume that this sovereign supreme unit will also have the power to restrict freedom of speech in the same way as it can limit any other freedom.