On The Limits of Free Speech: Towards the Fair Value of Communicative Liberties

Renato Francisquini

doi:10.1590/1981-38212014000200003

Renato Francisquini

Open Access

https://doi.org/10.1590/1981-38212014000200003

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Abstract

This study addresses, from a theoretically oriented perspective, the relationship between freedom of expression and democracy, trying to assess its implications for the regulation of mass media. Starting with a legal case in which a TV channel and a journalist were prosecuted for hate speech, looking at the reaction of the Sao Paulo Press Association to the case, I examine three perspectives on the statute and the reach of expressive liberties—the Millian Principle, the collectivist approach, and the participatory view—which connect these liberties to the ideas of moral autonomy and self-determination. For different, but related, reasons, these views present a conception of free speech that would not garner universal agreement in a pluralistic society. Moreover, some of the ideas defended could justify rules (or the absence of them) that might harm the social bases of self-respect. In opposition to these lines of thought, I argue for the fair value of communicative liberties; i.e., the idea that everyone should have access to the same rights and effective conditions to exercise communication. This means a fair distribution of opportunities for occupying the mediated public space and the establishment of rules to discourage the dissemination of ideas that fail to acknowledge the equal respect that we owe to each other as members of the political association. Democracy, I shall contend, comprises both private and public autonomy. A fair system of communicative freedom is to be seen as the outcome of and the upholding force in a democratic society.

Highlights

This study addresses, from a theoretically oriented perspective, the relationship between freedom of expression and democracy, trying to assess its implications for the regulation of mass media
The São Paulo Press Association reacted by publishing a note opposing the conviction, in which it stated, "one cannot think of democracy in Brazil without fighting for the rights enshrined in the United Nations' Charter of Human Rights, which protects the human right to freedom of expression and the right to communication"1
It conceives free speech as being derived from natural law; it is a right that requires no further justification. Such a controversy raises a debate regarding the statute and the character of freedom of expression in societies in which public communication is more and more dependent upon the mediation exercised by technology. This discussion surrounds the relationship between free speech and media freedom4, and concerns the question of who the legitimate holder of rights to freedom of expression is or should be, as well as what the limits of these rights are in terms of different communicative practices

Summary

Introduction

This study addresses, from a theoretically oriented perspective, the relationship between freedom of expression and democracy, trying to assess its implications for the regulation of mass media. In this sense, is related internally to the safeguarding of public debate; in contrast with the collectivist approach, this requirement is to be understood as excluding regulations that restrict speakers' expressive liberties and their legitimate interests in participating in self-

Results

Conclusion