Freedom of Communication in the US and Europe
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Pedro Tenorio
Full Professor of Constitutional Law and Deputy Director of the Department of Constitutional Law at UNED (Spanish National University of Distance Education)
Abstract
This paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consistent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defamation cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consideration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Constitutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the preferential position of freedom of expression. However, the incorporation of the Sullivan doctrine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.
About the author
Full Professor of Constitutional Law and Deputy Director of the Department of Constitutional Law at UNED (Spanish National University of Distance Education)
© 2017 by Walter de Gruyter Berlin/Boston
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Constitutional Protection of the Head of State: The Case of Kosovo
- Freedom of Communication in the US and Europe
- Terrorism and Constitutional Change: Lessons from Spain
- Notes
- Egypt’s Constitution: What went Wrong?
- Constitutional Court and Constitutional Review in Albania
- Developments Austria
- Determination of citizenship after (supposed) birth through full surrogacy in the Ukraine
- Comprehensive prohibition of panhandling in public areas unconstitutional
- The exclusion to receive copies of video surveillance in the light of the right to a fair trial
- Developments CEE
- Polish Constitutional Tribunal: The rules for disclosing case records at the pre-trial stage of criminal proceedings
- Hungarian Constitutional Court: The Ratification of the Fiscal Compact
- Book Reviews
- Werner Heun, The Constitution of Germany: A contextual analysis, Hart Publishing, 2011, ISBN 978-1841138688, 241 pp.
- Ioannis Lianos/Okeoghene Odudu (eds), Regulating Trade in Services in the EU and the WTO. Trust, Distrust and Economic Integration, Cambridge University Press 2012, ISBN 9781107008649, 489 pp.
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Constitutional Protection of the Head of State: The Case of Kosovo
- Freedom of Communication in the US and Europe
- Terrorism and Constitutional Change: Lessons from Spain
- Notes
- Egypt’s Constitution: What went Wrong?
- Constitutional Court and Constitutional Review in Albania
- Developments Austria
- Determination of citizenship after (supposed) birth through full surrogacy in the Ukraine
- Comprehensive prohibition of panhandling in public areas unconstitutional
- The exclusion to receive copies of video surveillance in the light of the right to a fair trial
- Developments CEE
- Polish Constitutional Tribunal: The rules for disclosing case records at the pre-trial stage of criminal proceedings
- Hungarian Constitutional Court: The Ratification of the Fiscal Compact
- Book Reviews
- Werner Heun, The Constitution of Germany: A contextual analysis, Hart Publishing, 2011, ISBN 978-1841138688, 241 pp.
- Ioannis Lianos/Okeoghene Odudu (eds), Regulating Trade in Services in the EU and the WTO. Trust, Distrust and Economic Integration, Cambridge University Press 2012, ISBN 9781107008649, 489 pp.
