Feature | Freedom of expression, the American way

26 April 2010 by

The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.

If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.

Similar but different

Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not protected by the First Amendment; obscenity, child pornography, speech that incites imminent danger, and regulation of commercial speech such as advertising.

Extreme freedom of expression

In Stevens, The US court found that a federal law banning the sale of animal-cruelty videos violates the First Amendment of the US Constitution, and reaffirmed the right to engage in even highly unpopular speech. A New York Times editorial said that the Court. “wisely declined to create another category of expression outside of the First Amendment’s protection“.

The UK Supreme Court Blog describes the decision in light of the UK system’s protections of freedom of expression, and in highlights the stronger presumption in US law towards freedom of expression:

The Supreme Court upheld that decision 8-1 (Alito dissenting) holding that the law in question went too far. In particular, the Court rejected the notion that the test in respect of restricting speech was a simple balancing test of the value of the speech against its societal costs. In fact, the First Amendment had already tilted that balance strongly in favour of free speech, Chief Justice Robert stating in the option that

“our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Such an approach is unlikely to be adopted here. Freedom of expression in such material could only really be safeguarded at law by reference to Article 10 of the Human Convention on Human Rights. However, the European Court has not in the past been ready to protect pornography or unusual sexual behavior either under Article 10 or Article 8. This suggests that our Supreme Court would be unlikely to take the same approach if it had to determine the legitimacy of similar material under the Convention, even if its recent decision on the sex offenders’ register suggested a somewhat more interventionist approach in issues relating to sexual matters.

Go compare?

It is easy to assume that the protections under the Human Rights Act 1998 and its bedrock, the European Convention, are immutable, in the sense that now they have been guaranteed by law, they cannot be changed or reassessed, at least without diminishing them.

However, a recalibration of the rights could be used to bolster, rather than dilute. The recent Simon Singh libel case, although eventually resolved in Dr Singh’s favour, showed how tenuous the protection of free speech can be under the Human Rights Act. The muscular protection of free speech under the US Constitution provides a useful example of how that protection could work differently.

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