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French law counters the idea that positive dimensions of free speech are not part of the freedom, or that media pluralism is distinct from free communication. Instead, protecting pluralism is central to French constitutional law. The approach echoes ideas of sustained plural public speech raised in earlier chapters. French law aims for an effective freedom for recipients. For people to express opinions that have political effect, as is said to occur in a democracy, people must be able to form opinions first. Democracy depends on plural public speech, involving multiple diverse outlets and transparency over information sources and financing. The French example is interesting for what it says about free speech and democracy, but what the requirements actually amount to is less than expected. A great deal of detail is left to actors beyond courts. In part, this reflects French traditions of protecting rights, although they are changing. Overall, strong statements about pluralism do not translate into as precise or demanding constitutional requirements as they might, but trends to date suggest more could eventuate.
This chapter examines positive free speech and democracy. It suggests that positive free speech is part of the legitimacy claim of the constitutional democratic form in contemporary societies, rather than being linked to one or other version of democracy, such as libertarian, republican, agonistic or deliberative. Democracy presupposes a freedom of speech with certain qualities: communicatively legitimate democracy involves a basic role for sustained plural public speech, supported by positive and negative dimensions of free speech, and this is true across varied forms of democracy. This does not mean free speech need be a freedom without limits, nor that the analysis can usefully be applied under all formally democratic constitutions. At the least, an independent judiciary and a comparatively strong protection of free speech’s negative dimensions are needed for positive dimensions of free speech to be pursued.
The German approach to positive communicative freedom shows a constitutional court taking a substantial role over structural aspects of broadcasting, doing through constitutional law things that might be pursued elsewhere, if at all, through legislation or government policy without direct reference to free speech. This chapter extracts ideas and techniques relevant to positive dimensions of the freedom, lessons which might be adapted into different democratic contexts and cultures. Despite various weaknesses in the approach, how German law supports the freedom and why it does so have wider significance for free speech. The court acts in a small number of ways to support some aspects of positive communicative freedom. But the court framing the freedom, through its precautionary approach, appears to have substantial effects. The example suggests that, if courts do not promote structural diversity, adequate and varied financing and independence for media, positive free speech may not be realised to any democratically sufficient degree.
This chapter primarily examines US legal writing on free speech that uses ideas of positive freedom. The examples show how positive dimensions of free speech can be argued for even where formal law is highly negative in approaching the freedom. The examples contain repeated calls for diverse public speech that, in some way, is promoted by government. They are aware that speech arises within existing practices of communication, practices that constrain as well as enable speech; the freedom involves dialogical, social or structural interests, not only individual ones; and government always affects opportunities for speech, not only when it directly restricts speech. While the examples link speech with democracy, many do not address any communicative preconditions to democracy, such as an architecture for speech inhering in the idea of democracy itself. However, some legal writing does address just such preconditions, providing a useful introduction to the next two chapters that consider examples of courts acting in support of positive free speech precisely because the freedom is understood to be a precondition of democracy.
‘Positive’ in positive free speech can mean enabled freedom or a legally (and perhaps judicially) protected right. Both meanings can be important. Understanding arguments for positive free speech and how some courts protect it reveals what the freedom entails, provides ideas and techniques for various constitutional actors, and suggests the improbability of legislatures alone protecting positive free speech enough. A partial framework for the positive freedom is taken from earlier chapters, drawing on media studies models of diverse media, the freedom’s democratic basis, analyses of positive human rights, political freedom, the US First Amendment, and constitutional law from Germany and France. Questions about democratic legitimacy and judicial rights protection are examined. Criticisms of judicial rights review can presuppose effective public speech, but such speech appears unlikely without legal protection of positive free speech which may well require judicial action, although questions remain about such action’s effectiveness. Finally, points are raised about applying historical lessons of this study to the changed contemporary environment for public speech.
This chapter outlines the structural diversity of public speech that democratic government requires, and the claim that democracy entails positive freedom of communication, not only a negative freedom or liberty. The state has obligations to support communicative freedom; both positive and negative dimensions of free speech need protection for democracy to have substantial communicative legitimacy. This book, often using historical comparative material, examines speech and varied forms of democracy; what it would mean for society to have a voice, formulate judgments and make claims of government that are heard; and free speech law’s role in the voice, judgments and claims. The chapter explains terminology, challenges in the approach and sources used: media studies, human rights, political theory and legal writing and case law. Further possible sources are considered, including analyses based on communication rights and republican freedom. The book is not an exegesis of any one legal system but explores ideas and techniques relevant to positive dimensions of free speech. The aim is show how law should treat positive free speech and raise questions for democratic systems.
This chapter examines writing on positive human rights and political theory on positive freedom. The human rights analysis suggests positive free speech entails obligations on states to act for diversity in public speech to support autonomy and democratic practices, perhaps with courts having a role to frame positive free speech as a democratic precondition. Work from political theory is used to argue Isaiah Berlin’s analysis of positive and negative freedom has little relevance for positive dimensions of free speech. Other writers show positive communicative freedom is highly pluralistic, clearly connects with democratic goals, and includes negative liberty. Even for approaches generally within Berlin’s tradition, his essay should be left aside when discussing free speech. The writing examined in this chapter tends to place responsibility on institutional politics rather than judges. Similar ideas are evident in much of the legal scholarship considered in the next chapter. But it becomes clear in subsequent chapters why such a limited judicial role is unlikely to result in substantial positive freedom of speech, even if a larger judicial role also raises real challenges.
This chapter examines the idea of ‘sustained plural public speech’ and the place of positive free speech within it. Two models of diverse media, taken from media studies, illustrate the structural diversity within positive free speech. They suggest how constitutional speech protections could frame a democratic architecture for public speech, which should aim to support sustained plural public speech through diverse media entities, funding, missions and people. Legal research is used to consider how courts determine the meaning of freedom within free speech law, the positive freedom’s democratic rationale, some dubious assumptions that can underlie negative approaches to free speech, and the breadth of the positive freedom. Possible roles for judges and other actors are also considered. Later examples suggest the theoretical value in courts doing more, where others fail to act sufficiently, to support positive free speech by framing obligations for legislative, executive and regulatory action. This need may not be rare but central to democracy’s communicative requirements.
Free speech has positive dimensions of enablement and negative dimensions of non-restraint, both of which require protection for democracy to have substantial communicative legitimacy. In Democracy of Expression, Andrew Kenyon explores this need for sustained plural public speech linked with positive communicative freedom. Drawing on sources from media studies, human rights, political theory, free speech theory and case law, Kenyon shows how positive dimensions of free speech could be imagined and pursued. While recognising that democratic governments face challenges of public communication and free speech that cannot be easily solved, Kenyon argues that understanding the nature of these challenges (including the value of positive free speech) at least makes possible a democracy of expression in which society has a voice, formulates judgments, and makes effective claims of government. In this groundbreaking work, Kenyon not only reframes how we conceptualize free speech, but also provides a roadmap for reform.
This collection of essays, by leading scholars and practitioners from a range of countries, pays homage to a pre-eminent figure in the field of intellectual property: Sam Ricketson. Inspired by the breadth of Ricketson’s work, the contributions explore issues from a perspective that looks across the field – in particular, across the regimes, jurisdictions, disciplines and professions of IP. Topics explored across the regimes include the nature of IP subject matter, overlaps in protection, historical connections between copyright and patents and the transplantation of civil law moral rights to common law copyright. In across jurisdictions, chapters address, inter alia, the application of private international law to cross-border IP disputes, the Berne Convention and AI-authored works, how countries might exit the Berne Convention and dispute settlement under TRIPS. The intersection of copyright and privacy laws, the relationship between privacy, personality and trade mark laws, the teaching of IP and human rights and the conduct of empirical and historical research in IP are among the matters considered across disciplines. Contributions across professions include the participation of scholars in IP policy making, the IP textbook in legal practice, and the role of expert evidence in IP litigation.
In recent decades, empirical research has developed across many areas of intellectual property law. This chapter examines challenges that can arise in conducting, or drawing upon, empirical research in IP law. These include assessing a study’s value in terms of methodology, sample choice and size, execution and reporting, as well as the conclusions that might reasonably be drawn from the research. As IP scholars generate more empirically informed research, there can be value in asking whether the studies are robust and well executed, whether they reveal information or viewpoints previously not recognised, and whether they produce work from which legal or scholarly lessons can be drawn. Robust, well-conducted and analysed empirical studies may provide insights that develop IP scholarship in new ways and potentially improve policy and decision making. This underlines the importance of not being complacent about empirical analysis but being open to rigorous questioning, both individually and collectively, about our practices.