Vides a means to the end of self-actualisation. This argument has been

advanced by, inter alia, J.S. Mill and Thomas Emerson. Its starting

point is the proposition that the proper end of man is the realisation of

his character and potentialities as a human being’ and that free-

dom of expression is a necessary condition of self-actualisation.

Without it, we cannot, on this analysis, flourish. In this argument, we

hear echoes of the Romantic movement. According to the Romantics,

‘we find truth within us’ and come to understand it in the course of

giving expression to our ‘inner voice’ (Taylor, 1989, Ch. 21; see also

Berlin, 1996, p. 178). More recently, a variation on this theme has been

461

Freedom of Political Expression

advanced by Joseph Raz. He argues that freedom of expression pro-

vides a means by which the styles of life we adopt can, through public

portrayals and representations, be validated (Raz, 1991, p. 311).

A further argument advanced in support of freedom of expression

is that it facilitates the pursuit of truth and the acquisition of know-

ledge. This argument has a lengthy lineage. We find it being set out in

the seventeenth century by John Milton in his Areopagitica. In the

twentieth century, the same line of argument has been advanced by

Oliver Wendell Holmes. In his dissenting judgement in Abrams v.

United States (1919, p. 630), Holmes stated that ‘the best test of truth is

the power of a [given] thought to get itself accepted in the competition

of the market [place of ideas]’. Holmes’s point is that, in circumstances

where a plurality of arguments are advanced, the stronger can be

expected, other things being equal, to drive out the weaker. This is a

View that coheres with the thinking of the late Professor Karl Popper

(Popper, 1966, pp. 224–5. According to Popper (who was a philosopher

of science), critical discussion provides a means by which to eliminate

errors in our thinking and thus to move towards ever more plausible

working hypotheses (but never incontrovertible truths).

A narrower variation on the pursuit of truth rationale for free-

dom of expression is to be found in the US Supreme Court case of

Whitney v. California (1927). In a concurring opinion, Brandeis J

wrote that: ‘freedom to think as you will and to speak as you will

are means indispensable to the discovery and spread of political truth’

(at pp. 375–6 (emphasis added)). Here, we find Brandeis J identifying

freedom of expression as means by which to identify not truth generally

but rather ‘political truth’. In his opinion, Brandeis J does not offer a

definition of ‘political truth’. However, it seems reasonable to suppose

that he understood it to include, inter alia, models of human associa-

tion that conduce more, rather then less, satisfactorily to human

welfare. (This narrower form of the pursuit of truth rationale intersects,

of course, with the democracy rationale discussed above. For further

discussion of this point and Brandeis J’s opinion, see White, 1996.)

The pursuit of truth rationale described above conjures up a picture

of discursive processes in which participants, while disagreeing with

one another, exhibit a tolerant disposition. Bollinger has argued that

freedom of expression facilitates ‘the development of [a] capacity for

tolerance’ (Bollinger, 1990, p. 984). A capacity for tolerance is, on Bol-

linger’s account, desirable for, inter alia, the three following reasons.

First, it works to weaken ‘a general bias against receiving or acknow-

ledging new ideas’ (p. 983). Secondly, it is particularly valuable in

‘large and complex societies’ containing people with ‘varied beliefs and

462 General Principles of Constitutional and Administrative Law

interests’. This is because a readiness to tolerate views other than one’s

own facilitates coexistence by serving to check ‘the wish to establish an

overly homogenised society’ (ibid.). Thirdly, in circumstances where

people are willing to tolerate views other than their own, they may be

more ready than would otherwise be the case to tolerate non-verbal

modes of activity that they regard as objectionable (p. 984). This is,

moreover, a point that can be regarded as having particular relevance

in plural societies.

As can be seen from the above, a wide range of arguments sup-

port the view that we should enjoy considerable freedom of expres-

sion. We must now examine the bodies of law noted above. They are,

of course, informed by purposes that could be thwarted, or at least

compromised, in circumstances where people enjoy broad expressive

freedom.

19.2 The Status of Freedom of Expression

Among the rights protected by the European Convention on Human

Rights, freedom of expression has an especially high status (see Laws

LJ in R. (Mahmood) v. Secretary of State (2001)). In R. v. Central Inde-

pendent Television plc [1994] 3 All ER 641 at 652 Hoffmann LJ said that

‘freedom of speech is a trump card that always wins’. However, rights

are rarely if ever absolute and, as Sedley LJ pointed out in Douglas and

Zeta-Jones v. Hello! Ltd [2001] 2 All ER 289 at 323–4, Lord Hoffmann

was speaking in a context where there was no competition with the

exceptions in the ECHR. Even freedom of expression must sometimes

give way to a ‘pressing social need’ and must be accommodated with

other rights such as privacy. Thus Art. 10 confers the right of freedom

of expression, subject to ‘duties and responsibilities’ (see Handyside v.

UK (1974)). These duties and responsibilities entitle the state to limit

freedom of expression in a manner ‘prescribed by law’ and ‘necessary in

a democratic society’ for the following purposes:

. national security;

. territorial integrity or public safety;

. for the prevention of disorder or crime;

. for the protection of health or morals;

. for the protection of the reputation or rights of others. In particular,

freedom of expression may have to be compromised by the right to a

fair trial (Art. 6), privacy (Art. 8, below Ch. 20), and freedom of

religion (Art. 9);

463

Freedom of Political Expression

. for preventing the disclosure of information received in confidence;

. for maintaining the authority and impartiality of the judiciary.

Article 11 confers a right to freedom of assembly with overrides for

national security, public safety, the prevention of disorder or crime,

the protection of health or morals and the protection of the rights and

freedoms of others.

Some forms of expression are regarded as more important than

others. Political speech is widely regarded as especially important so

that attacks on the government are subject to restriction only in

extreme cases (see Castells v. Spain (1992)). Therefore freedom of the

press is regarded as particularly important because the press (including

for this purpose the broadcast media) is a watchdog over government

on behalf of the public (see Jersild v. Denmark (1994); Lingens v.

Austria (1986)). In Hector v. A-G of Antigua and Bermuda [1990] 2 All

ER 103 at 106, Lord Bridge said that ‘in a free democratic society . . .

those who hold office in government must always be open to criticism.

Any attempt to stifle or fetter such criticism amounts to political

censorship of the most insidious and objectionable kind’.

The common law has recognised the importance of press freedom by

limiting the rights of public bodies to sue for defamation (Derbyshire

County Council v. Times Newspapers Ltd (1993). In R. v. Secretary of

State for the Home Department ex parte Simms (1999) the House of

Lords held that a prisoner has a right to a visit from a journalist in

order to campaign for his conviction to be quashed. In Richmond LBC