Freedom of Expression and Spatial (Imaginations of) Justice

Abstract

To consider how freedom of expression is spatially produced and the use of differing spatial imaginaries in discursive legal decision-making, this chapter uses a case study from the ECtHR: Rael v Switzerland (2012). In Rael, the prohibition of advertising hoardings in an apparently public space was held not to infringe the applicant organisation’s right to freedom of speech, as protected by Article 10 of the ECHR. The ECtHR held that there was no unlimited freedom of expression on the public billboards in a municipal square even though far more contentious material could be freely distributed by the Raelian Association through the internet. This finding was considered “singular, if not paradoxical” (para 9) by the seven dissenting judges, as well as many commentators.This chapter suggests that we can understand this apparent paradox if we use tools of legal geography, drawing on the work of Lefebvre, Arendt and Habermas and proceeding from the leading assumption in legal geograpthy, that the legal decision in Rael, the space and the social context in which this dispute took place, are all mutually constitutive. To investigate the spatiality of the understanding of freedom of expression (one incident of justice) in Rael, this chapter considers the work that “space-talk”, or an apparent absence of “space-talk”, does in legal decision-making. It draws on two concepts developing in legal geography to explore how spatial understandings might be produced. The first is that of “splices” - a way of understanding combinations of spatial and legal orderings (public space could be, for example, one such splice). The second is that of “spatial imaginaries” - exploring how imaginations of the space (whether explicitly articulated or not) take form and do legal work. The analysis suggests that understanding the work splices and legal-spatial imaginaries do might help explain a judgment, such as Rael, which in conventional legal terms seems contradictory. Lastly, this chapter suggests that these observations could contribute to a research agenda in EU law, and to European understandings of justice. The production of EU space - both in terms of jurisdiction but also as a lived, everyday, material reality - depends on social, spatial, political, cultural, ethnic and legal co-production. This much seems obvious. What legal geography can add to discussions on European justice is an investigation into how the interactions between discursive and socio-spatial production of the space occur. Identifying geo-legal ordering (splices) and supplementing these with an investigation of underpinning legal-spatial imaginaries, operating on individual sites or within EU jurisdictional space as a whole, can help to uncover implicit or explicit legal-spatial understandings of what “European space” should be like. These ideas have long been explored in terms of EU teleology and purposive interpretations of the Treaties; this adds socio-spatial understandings to these well-established politico-legal discussions.