COMPARATIVE FREEDOM OF SPEECH: Reading list Introduction This course explores how freedom of speech is treated in leading liberal

democracies, particularly the United Kingdom, Canada, and the United States, as well as under the European Human Rights Convention. After considering some general questions such as the justifications for the special legal position of freedom of speech and the scope and meaning of speech for the purposes of this legal position, the course considers the restrictions imposed on different types of speech: political speech, pornography and commercial speech. It includes an examination of the restrictions placed on hate speech in both the racial and religious contexts and the limits imposed by libel and privacy laws. Two seminars in the second term are concerned with the related right to freedom of assembly and legal restrictions on demonstrations and public protest. Three discuss how free speech legal principles operate in some special contexts, notably during election campaigns, in employment and in the educational context. In view of the wide range of the subject-matter and of the variety of jurisdictions from which cases are taken, discussion will be at the level of general principle. The course in short will not examine in detail the state of free speech law in, say, England or Canada, but will compare leading cases from both these jurisdictions with those in others. Most of the seminars will be taken by Professor Eric Barendt, but those on hate speech will be taken by Colm OCinneide. The course will be examined by a two hour examination and assessed course work: an essay on a subject of 5,000 words on one of three or four assigned topics. The examination and course work each count for 50% of the total mark. Books Eric Barendt, Freedom of Speech (OUP, 2007) Ian Cram, Contested Words (Hart, 2006) David Feldman, Civil Liberties in England and Wales (OUP, 2002) Part IV Jack Beatson and Yvonne Cripps, Freedom of Expression and Freedom of Information (OUP, 2000) Richard Moon, The Constitutional Protection of Freedom of Expression (University of Toronto Press, 2000) Michael Chesterman, Freedom of Speech in Australian Law (Ashgate, 2000) Ed by Ivan Hare and James Weinstein, Extreme Speech and Democracy (OUP, 2009) (Extreme Speech)

* Essential reading to be done BEFORE each seminar is marked with an asterisk. But for the purposes of the examination you are expected to be familiar with much of the material on this list and to make some assessment of its importance. Week I: Introduction Scope of the course Relationship to media law course Outline of its contents Methods of teaching and assessment The relevance of free speech theories and political philosophy

Week 2: Free speech theories *Mill, On Liberty, Essay II Schauer, Free Speech; a philosophical enquiry (CUP, 1982) chs 1-6 *Barendt, ch 1 *Scanlon, A Theory of Freedom of Expression (1972) 1 Philosophy and Public Affairs 204, reprinted in Dworkin, The Philosophy of Law (OUP, 1977) and in the collection of essays ed by L Alexander, Freedom of Speech (Ashgate International Library of Essays in Law and Legal Theory) Amdur, Scanlon on Freedom of Expression (1980) 9 Phil & Pub Affairs 287 Raz (1991) 11 Oxford Journal Legal Stud 303 Dworkin, Freedoms Law (OUP, 1996) ch 8 Questions for discussion: . Outline Mills truth argument. What are its shortcomings? May government sometimes prohibit the publication of speech which might contain some truth? Is freedom of speech an integral aspect of the right to selfdevelopment? How persuasive is Scanlons Millian argument? The argument from democracy is the only persuasive argument for the protection given freedom of speech. Do you agree?

Week 3: Freedom of Speech in liberal democracies *Barendt, ch 2 Grimm, Freedom of Speech in a Globalized World in Extreme Speech, 11 *European Human Rights Convention (ECHR) art 10 *Sunday Times v UK (1979) 2 EHRR 245 *Lingens v Austria (1986) 8 EHRR 407 *Human Rights Act 1998, ss 3,4, 6,12 R v Shayler [2003] 1 AC 247, paras 21-26, 52-1 *R v BBC, ex parte ProLife Alliance [2004] 1 AC 185 *Campbell v MGN [2004] 2 AC 457 (Hale, esp paras 142-58) *RAV v St Paul 505 US 377 (1992) (Scalia J) Weinstein, An Overview of Free Speech Doctrine. in Extreme Speech, 81 Irwin Toy v AG for Quebec [1989] SCR 927 (Dickson CJ) *R v Keegstra [1990] 3 SCR 697 (Dickson CJ) Cameron (1997) 35 Osgoode Hall Law Jo 1 Questions for discussion: What broadly is the status of freedom of speech in English law after incorporation of the ECHR into UK law? Does the European Court of Human Rights simply balance freedom of expression with other competing rights or the public interests set out in ECHR, art 10(2)? What is wrong with content-based bans on freedom of speech? What is the approach of the Canadian Supreme Court to determining when a restriction on freedom of expression is legitimate?

Week 4: The meaning and scope of freedom of speech *Barendt, ch III, ss 1-2, 4, 6-7 a. The speech/conduct distinction *US v OBrien 391 US 367 (1968) Nimmer (1973) 21 UCLA Law Rev 29 *Henkin (1968|) 82 Harvard Law Rev 63 * R (on the application of Farrakhan) v Home Secretary [2002] QB 1391 b. Flag-desecration *Texas v Johnson 491 US 397 (1989) DPP v Percy [2002] Crim Law Rev 835 (or [2001] EWHC Admin 1125) c. Freedom not to speak *West Virginia State Board of Education v Barnette 319 US 624 (1943) 3

Wooley v Maynard 430 US 705 (1977) *Lavigne v Ontario Public Service Employee Union [1991] 2 SCR 211 (LaForest J) d. Positive rights and freedom to gather/seek information Schauer, Free Speech, ch 8 *Houchins v KQED 438 US 1 (1978) *Board of Education v Pico 457 US 853 (1982) (Brennan J, and Rehnquist J) *Leander v Sweden (1987) 9 EHRR 433 Tarsasag Szabadsagjogokert v Hungary, European Court of Human Rights Decision of 14 April 2009 Haig v Canada [1993] 2 SCR 995 (LHeureux-Dube J) Questions for discussion Should the courts attempt to draw a distinction between speech and conduct when they apply a free speech provision? Is an act of flag-desecration always to be regarded as protected speech? What is the basis for protecting a right to be silent or not to speak? Should it cover a right not to complete a census form or a right for drugs or food producers not to disclose the contents of their product? In what circumstances, if any, does or should freedom of speech impose positive duties on public authorities? Do you agree with the Court in the Pico case or with the dissent of Rehnquist J?

Week 5: Prior Restraints *Barendt, ch IV (a) General arguments Jeffries, (1983) 92 Yale Law Jo 409 *Observer and Guardian v UK (1992) 14 EHRR 153, 191 *Association Ekin v France (2002) 35 EHRR 1207 *Near v Minnesota 283 US 693 (1931) Little Sisters Book and Art Emporium v Minr of Justice [2000] 2 SCR 1120 *ProLife Alliance v BBC [2004] 1 AC 185 (Hoffmann) (b) Film and Video Censorship Williams Committee Report on Obscenity and Film Censorship (Cmnd 7772, 1979) , paras 12.1-12.11 *R v Glad Day Bookshop (2004) 239 DLR (4th) 119 Cinemas Act 1985, s 1 Video Recordings Act 1984, s 4 4

*Wingrove v UK (1997) 24 EHRR 1 (c) Official secrets cases *AG v Guardian Newspapers [1987] 1 WLR 1248 HRA 1998, s 12(3) *New York Times v US 403 US 713 (1971) US v Progressive Inc 467 F Supp 990 (1979) Munro (2002) Juridical Rev 1 Questions for discussion: Are there any persuasive reasons for considering prior restraints a more significant restriction on freedom of speech than criminal sanctions? Should injunctions be subject to very strict scrutiny as a type of prior restraint? Can a system of film or video classication/censorship be justified? What did the Supreme Court decide in the Pentagon Papers case? Do you agree with its hostility to prior restraints in the circumstances of that case?

Week 6: Political Speech I *Barendt, ch V, ss 1-3 (a) The preferrred position of political speech Australian Capital Television v Commonwealth (1992) 177 CLR 106 *Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 *Brown v Classification Review Board (1998) 82 ACR 225, Federal Court of Australia *Thorgeirson v Iceland (1992) 14 EHRR 843 *Derbyshire CC v Times Newspapers [1993] AC 534 Bork (1971) 47 Indiana Law Jo 1 Zines in Freedom of Expression and Freedom of Information 35 Hare, Ibid, 105 (b) Seditious speech *R v Aldred (1909) 22 Cox CC 1 R v Chief Metropolitan Stipendiary Magistrate [1991] 1 QB 429, 452-53 *Boucher v R [1951] 2 DLR 369 Gitlow v New York 268 US 652 (1925) Whitney v California 274 US 357 (1927) (Brandeis J) *Dennis v US 341 US 494 (1951) (Frankfurter J, Douglas J) *Incal v Turkey (2000) 29 EHRR 449 *Zana v Turkey (1999) 27 EHRR 667 5

United Communist Party of Turkey (1998) 26 EHRR 121 Refah Partisi v Turkey (2002) 35 EHRR 56 Questions for discussion: Is it right to give greater protection to political than other types of speech? What constitutes political speech for such greater protection? In what circumstances is it legitimate for a state to ban or restrict extreme political speech, advocating, say, revolution or the dissolution of the state? Do you agree with Frankfurter J or with Douglas J in Dennis?

Week 7: Political Speech II (a) Incitement to or Encouragement of Terrorism *UK Terrorism Act 2000, ss 1, 59 *UK Terrorism Act 2006, s 1 (and see definitions of glorification etc in s 20) R v El-Faisal [2004] EWCA Crim 456 *Brandenburg v Ohio 395 US 444 (1969) Watts v US 394 US 705 (1969) *US v Rahman 189 F 3d 88 (1999) Planned Parenthood of Columbia/Williamette v American Coalition of Life Activists 290 F 3d 1058 (2002) Leroy v France, Judgment of 2 October 2008 (see Sottiaux, (2009) EHRLaw Rev 415) Larry Alexander, Incitement and Freedom of Speech in Freedom of Speech and Incitement against Democracy (Kluwer, 2000) 101 K Greenawalt, Speech, Crime and the Uses of Language (OUP, 1989) ch 15 Barendt, Incitement to, and Glorifcation of,Terrorism in Extreme Speech, 455 (b) Disclosure of official secrets *Barendt, ch V, s 6 *AG v Guardian (no 2) [1990] 1 AC 109 (Keith, Griffiths) *Official Secrets Act 1989 (UK) * R v Shayler [2003] 1 AC 247 Vereniging Weekblad Bluf! v Netherlands (1995) 20 EHRR 189 *Stoll v Switzerland (2007) 47 EHRR 59 Questions for discussion: Is the offence of encouragement of terrrorism introduced by the UK Terrorism Act 2006 compatible with freedom of political speech? 6

Would the offence be unconstitutional in the USA? Why did the House of Lords refuse to grant a permanent injunction in the Spycatcher case? Did it balance freedom of speech and national security appropriately? Should the UK Official Secrets Act 1989 incorporate a public interest defence to give free speech greater protection?

Weeks 8 and 9: reading to be supplied by Colm OCinneide Week 10: Freedom of speech and libel law *Barendt, ch VI, ss 1-3 *New York Times v Sullivan 376 US 254 (1964) *Gertz v Robert Welch 418 US 323 (1974) Time v Firestone 424 US 448 (1976) *Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 *Lange v Atkinson [1998] 3 NZLR 424 *Reynolds v Times Newspapers [2001] 2 AC 127 (Nicholls, Steyn) *Jameel v Wall Street Journal [2006] 4 All ER 1279 (Hoffmann, Hale) *Lingens v Austria (1986) 8 EHRR 407 *Bladet Tromso v Norway (2000) 29 EHRR 125 Selisto v Finland [2005] EMLR 8 *Pedersen v Denmark (2006) 42 EHRR 24 *Lindon and others v France (2008) 46 EHRR 35 Nimmer (1968) 56 California Law Rev 935 Schauer (1980) 1 Journal of Media Law and Practice 3 Franklin (1986) 34 UCLA Law Rev 1657 Questions for discussion: Why did the US Supreme Court decide the New York Times case in the way it did? Was the High Court of Australia right to reject the approach in New York Times? After the decision of the House of Lords in Jameel the media are free to publish any defamatory allegations they consider with good reason to be in the public interest. Is this an accurate statement of English law? How would an English court decide a libel action brought on the facts of (a) Bladet Tromso and (b) Selisto? Is the approach of the European Court in its recent libel rulings compatible with that adopted in Lingens?

Week 11: Free Speech and Privacy

*Barendt, ch VI, s 5 *A v Bplc [2003] QB 195 *Campbell v MGN [2004] 2 AC 457 *Douglas v Hello! [2006] QB 125, paras 39-151, 251-60 CC v AB [2007] EMLR 11 *Mosley v News Group Newspapers [2008] EMLR 20 *Aubry v Canadian Broadcasting Corp (1998) 157 DLR (4th) 577 Fressoz and Roire v France (2001) 31 EHRR 28 *Peck v UK (2003) 13 BHRC 669 *Von Hannover v Germany (2004) 16 BHRC 545 Plon v France (2006) 42 EHRR 36 *Karhuvaara v Finland (2005) 41 EHRR 51 Time v Hill 385 US 374 (1967) *Bartnicki v Vopper 532 US 514 (2001) *Shulman v Group W Productions 74 Cal Rep 2d 843 (1998) Schauer (1991) 41 Case Western Law Rev 699 Paton-Simpson (2000) 50 University of Toronto Law Jo 305 Barendt (2009) 1 Journal of Media Law 49 Questions for discussion: Is there a free speech right to know the truth about someones private life? There should be no privacy right to stop the publication of a photograph taken in public, such as on a street or in a public park. Discuss. How would Von Hannover be decided in England? How should it be Decided here? What did the US Supreme Court decide in Bartnicki? Do you agree with the majority decision or with Rehnquist CJ dissent?

Eric Barendt 8

September 2009