Criminal Contempt, Article 10 and the First Amendment – A Case for Importing Aspects of US Free Speech Jurisprudence?
| DOI | 10.1177/1023263X0000700303 |
| Author | Ian Cram |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Article |
Ian Cram *
Criminal Contempt, Article 10 and the First Amendment -
A Case for Importing Aspects
of
US Free Speech
Jurisprudence?
At first glance, the differences between the respective guarantees of free speech in the
First Amendment and Article 10 are so marked as to call into question the feasibility
of any comparative analysis of free speech jurisprudence. The seemingly absolutist
nature of the First Amendment imperative:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; abridging the freedom of speech or of
the press; or the right of the people peaceably to assembleand to petition the
government for a redress of grievances.
stands in stark contrast to the heavily circumscribed notion of free expression in Article
10:
1. Everyone has the right to freedom of expression. This right shall include
the freedom to hold opinions and to receive and impart information and
ideas...
2. The exercise of these freedoms ... may be subject to ... restrictions ... as
are prescribed by law and are necessary in a democratic society in the
interests of 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, for the preventing the
disclosure of information given in confidence, or for maintaining the
authority and impartiality of the judiciary.
*Lecturer in Law, Leeds University.
244 7 MJ 3 (2000)
IIan Cram
One commentator has observed that the terms of the First Amendment have fostered a
tendency:
to treat free speech as a fundamental right, without reference to the social
responsibilities which under a less absolutist European .., jurisprudence,
exemplified by Article 10(2) of the European Convention on Human Rights
...
would accompany it. 1
The structural differences in these guarantees have indeed generated jurisdiction-specific
case law. Thus for example, the Supreme Court has had to deal with questions about
what constitutes 'speech', whereas the more inclusive notion of 'expression' in the
Convention has shifted attention onto states' justification for interference with
expression. These obvious structural differences have tended at times to overshadow
sharedjurisprudential features. Taking as its focus the comparative regulation of speech
related to court proceedings, this article considers the case law of the Strasbourg court
and explores the extent to which reliance on US type reasoning is evident in Article 10
jurisprudence. Using Ronald Dworkin's notion of the moral reading of constitutions 2
and the distinction he advances between concepts and conceptions as aids to an
interpretative strategy for Articles 10 and 6,3 it will be argued that the 'best fit'
reading of European free speech/fair trial regulation requires a distinctive reading of the
Article 10 freedom in the context of court-related speech in which robust protection for
such expression might nonetheless be reconciled with legitimate administration of justice
concerns. The immediate prompt for the present discussion is the palpable failure of the
Strasbourg Court in Worm v Austria to give such protection to media outlets. At the
outset however, some general themes in European and US free speech jurisprudence are
examined.
§1. Free Speech Jurisprudence Compared
A.
US
FREE
SPEECH JURISPRUDENCE: GENERAL THEMES AND UNDERLYING
RATIONALES
In this section an synopsis of some leading features of US First Amendment
jurisprudence is set down. In the subsequent section on Article 10 jurisprudence, the
extent of any similarities of approach and underlying rationale will be addressed. To
begin with however, it is important to examine the rationales which have been
developed to support free speech.
1. See chapter by D.Feldrnan, in LLoveland (ed), Incorporating the First Amendment, (1998, Hart
Publishing), at 162.
2. Freedom's Law -The Moral Reading
of
the American Constitution, (1996. Oxford University Press),
esp. Introduction.
3. Taking Rights Seriously, (1977, Duckworth ), ch.5.
7 MJ 3 (2000) 245
To continue reading
Request your trial