I.  Freedom of the Press and the Right to Sue the Press
 
The right to a free press is a constitutional right in many countries. Legislatures and chief
executives (presidents and prime ministers) cannot pass laws which restrict the freedom
of journalists to report the news. The exception to this prohibition on censorship has been
that governments do have the right to restrict press concerning issues of national security.
However, this restriction should be viewed narrowly by the court, for it is freedom from
censorship or any other form of government intrusion into the gathering and disseminating
of news that lies at the heart of the meaning behind freedom of the press.

Freedom of the press does not mean that the press or journalists can knowingly print lies
or gross errors. If journalists write what they know to be false or if they write facts that
they should have known or they should have suspected to be false and they made no
effort to determine the accuracy of those facts, they can be sued for libel, slander or
defamation of character.  Libel (a writing that is maliciously false or obviously false and
which harms a person’s reputation or exposes him to public scorn or hatred or hurts his
business reputation), slander (the same as libel except the false facts are transmitted
orally), and defamation (again, similar to libel and slander except the false communication,
oral or written is intended to harm the reputation the person who the false information is
about) are the type of law suits that can be brought by someone whose reputation,
career, business or family has been harmed by the dissemination of the untrue facts.

It is important to recognize that libel, slander, and defamation are individual rights and not
governmental rights. The government cannot sue the press for libel, slander or defamation.
Also, it is important to recognize that these are civil lawsuits, meaning they are for money
damages. No journalists in a democracy should go to jail for writing articles, no matter
how inaccurate or objectionable they may be. Finally, these civil lawsuits are aimed at
journalists and the press after the article has already been disseminated and read.

II.  Broadcast Licensing


Unlike newspapers, which can be produced and distributed in almost limitless numbers,
and which vary in size from nationwide dailies to small newsletters, the broadcast press
must compete for a limited number of channels in order to get their message out. In
democratic governments it is because of this limited number of channels that governments
regulate the distribution of channels through the licensing of broadcast companies. The
government then allocates channels to licensed [a license is a permit granted by a
governmental agency to pursue a business or a profession subject to regulation by the
government], regulated broadcast companies. In some democratic countries (like Great
Britain) the state owns some of the broadcast companies, while in other democratic
countries they are all privately owned. The most important part to remember about
broadcast licensing in a democracy is that it is meant to regulate the distribution of a
limited number of channels and is not meant to be a means for the government to obtain
favorable coverage or censor critical broadcast companies.

III.  Status of Hate Speech

Those who believe strongly in the right of free speech do not believe that the government
can censor any speech on the basis of its content. These advocates of free speech invoke
the specter of free speech as a marketplace of ideas. They would contend, for example,
that if you are sitting in a cafe having a spirited discussion with friends nothing should
prevent you or your friends from saying to each other things that are distasteful or even
hateful.  Strong supporters of free speech believe that airing hateful views helps to defuse
their power and aids others in pointing out the errors, inconsistencies and maliciousness of
such views.

People who come from societies where hate speech led to dictatorship and destitution are
often less willing to protect hate speech. In their view hate speech is an evil genie which
must be kept bottled up. People who believe in regulating hate speech do not believe that
preventing hate speech is contrary to the goals and ideas wrapped up in the concept of
freedom of expression.
 
One of the greatest difficulties in regulating any speech based on content is in defining
what is meant by hate speech. What is hate speech to one person or group of people may
seem to be common sense truth to another person or group of people. Therefore, in the
absence of any universally defined view of what is hate speech, and in the absence of any
clear evidence that allowing hate speech to be disseminated weakens civil society or
undermines basic human rights, many free speech theorists and advocates are reluctant to
censor content that may or may not be hate speech. However, in the event that a
democratic government does decide that it will regulate hate speech, the courts must be
vigilant in recognizing the difference between unpopular speech and hateful speech. They
must protect the former while at the same time preventing the latter.

IV.  The Right to Receive Information

The right to receive information is an individual right not a right of the government. In a
democratic society a person has the right to receive, uncensored by the government,
information about society, culture, politics, and the law, to name a few examples. This
right does not include the right for individuals, governments or other organizations to
receive private information about individual citizens or the right of individuals to receive
certain kinds of information from the government, such as military secrets or the names of
children arrested for crimes, for example.
 
The right to receive information is a balancing between people’s right to know and
receive information and people’s rights to privacy. In addition the government has the
right to keep some information secret for the good of the nation and its people.


V. Conclusion

Freedom of expression, the protection of a civil society from those who wish to use its
freedoms to spread hatred and intolerance, and the right to receive information are all
important democratic rights. But as with most democratic rights, they are not absolute
rights without restrictions. Constitutional rights in a democracy are always about balancing
various interests in a way that protects both society and the individual.

Submitted by CEELI Liaison John Kelley
American Bar Association (ABA) Central and East European Law Initiative (CEELI)
Rr. Ismail Qemali, Pall. 34, Ap.2
Tirana, Albania
Phone: 355 42 346 24
Fax: 355 42 331 97
E-mail:  [email protected]