"has the First Amendment and Europe doesn't"

dahamsta

I haven't read the constitution yet - downloading it now in fact - is this true?

adam

Liberty, European-Style (Forbes, Registration Required?)
Dan Seligman, 04.25.05

The EU has funny ideas about human rights. For example, the idea that free speech is not among those rights.

Viewed from 3,000 miles away, the European Union looks like a kind of parallel United States. On both sides of the Atlantic, living standards are high, government is democratic and educated people speak English.

View it up close and you see striking differences. One of them is that America has the First Amendment and Europe doesn't. You can argue endlessly about whether the Founding Fathers intended the free speech clause--"Congress shall make no law … abridging the freedom of speech"--to protect flag-burning and nude dancing. But news stories from assorted Old World democracies make a persuasive case that they badly need a First Amendment over there. Not impeded by one, governments engage in a degree of speech suppression unimaginable in the U.S.

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ziggy

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Sangre

Nothing even close to freedom of speech in Ireland.
Subject to right to good name and reputation.
Also subject to public morality etc.,
Print and media are limited as well.

secret_squirrel

article wrote:

Not impeded by one, governments engage in a degree of speech suppression unimaginable in the U.S.

Im no expert but surely its (fractionally) better to be surpressed by a Government(s) with visible legal instruments - than to have any view that doesnt support the status quo squashed by the tiny number of individuals that own 99% of the media outlets in the states? Free speech is pretty useless nobody can listen to it.

I'd rather have limited free speech rather than paying lip service to true free speech like the US.

Sangre

Oh I see you meant the EU constitution...

Haven't read it but considering it hasn't been brought up in the media I'd ignore it, this Consitution is drafted by 100s of brilliant legal minds working for each MS interest and it can be vetoed....

Not to meant the European Court of Justices theological/purposive approach (not literal but read the aim) to Treaties means you won't have to worry....seriously. You wouldn't believe the stuff this court does to secure a desired aim.

Capt'n Midnight

The liable laws here have restricted a lot of free speach especially from political satiricists and reporters. And speakers corner is in the EU at least until the UKIP get elected (anyone see the octupus ad today ?)

IMHO the US has far too many laws giving individuals rights above those of society , this like the american dream (which can only be realised at the expense of lots of other americans 0.2% of the wealth held by the bottom 40% of population) is a symptom of the "me" society.

On the other hand many OTHER eu countries have freedom of information laws and practices that are far more transparent than anything in the US. There was a case of one journalist going through the mail of a scandanavian minister while waiting in his office as he was legally entitled to do. The freedom of speach in the US from here seems diluted by the promenance given in the media to the exceptional cases (porn / legal defense for lying) and relatively little coverage to genuine uses for which you would think it was intended.

nesf

The first ammendment in the US is a joke tbh. Any government will suppress things and can get away with it if they do it properly. It's a fact of political life imo.

I don't see what the fuss is all about. Freedom of speech is all good and fine in that I can say whatever I want to my friends in private. When I'm speaking in the media to a mass audience then it becomes a completely different story.

The first ammendment in the US constitution, along with the right to bear arms amoung other things, are relics of a society 300 years ago. Modern society does not lend itself well to these principles.

Free speech needs to be moderated to some degree, yes over-moderation of it is a symptom of a police state, but no modern society can afford to allow total freedom of speech. Anyone who argues that totally free speech is a good thing is not thinking things through. Off the top of my head I throw out the whole issue of explosives making guides. Call me crazy, but I sleep better at night knowing that random stupid idiot x doesn't know how to make explosives. An extreme example, but valid nonetheless.

Bri

secret_squirrel wrote:

Im no expert but surely its (fractionally) better to be surpressed by a Government(s) with visible legal instruments - than to have any view that doesnt support the status quo squashed by the tiny number of individuals that own 99% of the media outlets in the states? Free speech is pretty useless nobody can listen to it.

I'd rather have limited free speech rather than paying lip service to true free speech like the US.

Indeed.

Dan whathisface considers it a case in point that "Sweden has a law barring "inflammatory" remarks directed at racial or religious groups, or homosexuals" and that our "continent's ragged record on free speech" is evident. Pffft. My experience of working in both continents showed a very much US-based 'over-emphasis' (if you'll excuse the term) on quashing all types of possible inflammatory remarks and some sort of 3rd party harassment (i.e. being overheard by someone who might take offence to your converstaion).

I also like prefer Euronews to Fox

RagShagBill

I'm not certain about this, but doesn't the constitution at some points refer to past treaties for some of the new legislation. I'm pretty sure I read somewhere that Freedom of Speech was in there via a past piece of paper.

mycroft

nesf wrote:

Free speech needs to be moderated to some degree, yes over-moderation of it is a symptom of a police state, but no modern society can afford to allow total freedom of speech. Anyone who argues that totally free speech is a good thing is not thinking things through. Off the top of my head I throw out the whole issue of explosives making guides. Call me crazy, but I sleep better at night knowing that random stupid idiot x doesn't know how to make explosives. An extreme example, but valid nonetheless.

But it's the use of extreme examples that allow curtailing of our rights to occur. The anarchist cookbook is a basically harmless text, and someone who is commited to terrorist attacks is going to need and will easily find far more effective ways of bomb making. The basic principle of a fertilser bomb (ala world trade center in the 90s, and the olklahoma bomb) are realitivty simple for anyone with a moderate degree of chemistry and engineering to grasp. Restricting free speech in order to restrict knowledge is not an effective rule, and the potential abuse of such laws aganist people who object to government policy.

Legislation to make incitement to racial or religious intolerance, is a bit more pratical, however it generally falls flat on it's face because it's driven by a specific intance, anti nazi laws, or the current drafted legislation in the UK which Ruisdie claims would have led to his rest for writing the Satanic verses.

daveirl

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Sparks

Sangre wrote:

Nothing even close to freedom of speech in Ireland.
Subject to right to good name and reputation.
Also subject to public morality etc.,
Print and media are limited as well.

Just for reference, the actual constitutional article reads:

6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

In practise though, neither the EU nor the US have an ideal system with regard to free speech. The US has the Patriot acts and media monopolies, we've got over-enthuasiastic libel laws and a far-from-idealistic constitution. But then again, Horgan v. State sets the precendent for all articles of the constitution to be declared "aspirational" so it really doesn't mean that much in terms of a legal judgement anymore, assuming you have a determined enough judiciary...

kasintahan

nesf wrote:

I don't see what the fuss is all about. Freedom of speech is all good and fine in that I can say whatever I want to my friends in private. When I'm speaking in the media to a mass audience then it becomes a completely different story.

That's fine if you aren't trying to educate the public as to some matter of importance that the powers want supressed (corruption allegations etc).

As it stands under our system - the rich can say anything they like because they have the means to defend themselves or payoff the plaintiff. The poor (read average citizen), even with proof cannot afford to defend themselves in court.

The US system is far from perfect (and the Patriot act creeps me out) but I like what it tries to do.

nesf wrote:

Free speech needs to be moderated to some degree, yes over-moderation of it is a symptom of a police state, but no modern society can afford to allow total freedom of speech. Anyone who argues that totally free speech is a good thing is not thinking things through. Off the top of my head I throw out the whole issue of explosives making guides. Call me crazy, but I sleep better at night knowing that random stupid idiot x doesn't know how to make explosives. An extreme example, but valid nonetheless.

A criminal doesn't care what the law says - that's what makes him a criminal.
Laws restricting imformation on how to make explosives will only serve to criminalise research graduates / chemists etc.
The production of explosives should be illegal not the knowledge behind them.

Duffman

dahamsta wrote:

I haven't read the constitution yet - downloading it now in fact - is this true?

adam

Ok, just read the article and it's a terrible piece of journalism. The author clearly has no concept of what what the EU is and hasn't even bothered to research the draft Constitution. "The EU looks like a kind of parallell United States" -- Ehhh.... No.

It sounds incredible, or possibly not, but among the greatest threats to free speech in Europe is a document called the Charter of Fundamental Rights. The charter, proclaimed at an EU summit in 2000 and now incorporated into the provisional EU Constitution, comprises a blizzard of rights

The Charter of Fundamental Rights is a hell of a lot less significant than most people think. It's important to understand the nature and effect of this document. It's probably easiest to think of it as a kind of Bill of Rights. It's not actually "incorporated" into the Constitution, it's a schedule attached to it.

At the moment the Charter has no legal force, essentially it means nothing. The exact legal status of the document after ratification of the Constitution remains unclear, but at its most effective it will only apply to acts of the EU Institutions, ie. what the Commission, Council and Parliament do. Individuals will not be able to invoke it in their national courts. It's a nice idea but that's about all it has going for it, mostly useless.

I'll try to avoid a rant directed at the author here, but it doesn't compare so badly to the US Constitution at all. It catalogues a whole range of economic and social rights that no other human rights instrument in the world protects. Heaven forbid that people without money should be entitled to life-saving hospital treatment.... and freedom of speech in the US media? lmfao</rant>

Perhaps the most glaring omission is his failure to mention the fact that the Eu Constitution provides for the Union's accession to the European Convention on Human Rights.

(Just to avoid confusion, the ECHR is an instrument of the Council of Europe. It's enforced by the European Court of Human Rights in Strasbourg and has nothing whatsoever to do with the EU.)

The ECHR has 45 contracting states and is widely recognised as the most effective human rights instrument in the world. It expressly protects freedom of expression:

Article 10 – Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties 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
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.

The EU Constitution is nothing like the US Constitution. In fact it's not really a constitution at all, it's a treaty. It only affects the rights of individuals in areas in which the EU has competence.. The common market, competiton law, environment, consumer protection etc etc..

So let's say, following ratification of the Constitution, an EU act infringes your freedom of expression. You can take a case to the European Court of Justice via your national courts which recognised that the list of right in the Charter isn't exhaustive and freedom of expression is probably an unenumerated right in the EU at this stage anyway.

Failing that you have an appeal to the European Court of Human Rights in Strasbourg where you can invoke your right to freedom of expression.

The Charter isn't that significant at all. The need for better human rights protection was on the agenda during the negotiations about the Constitution. It makes things better, not worse.

Duffman

Sparks wrote:

Just for reference, the actual constitutional article reads:

6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

Remember that any protection afforded by the Irish Constitution is entirely irrelevant where an EU law is concerned. EU simply supercedes it, it is not subject to constitutional review in our courts.

Victor

"[Europe doesn't] [have a] [First Amendment]" Don't we have to have a constitution before we can amend it?

Liberty, European-Style (Forbes, Registration Required?)

Registration not required, but it would be ironic if it was.

mycroft

Sparks wrote:

But then again, Horgan v. State sets the precendent for all articles of the constitution to be declared "aspirational" so it really doesn't mean that much in terms of a legal judgement anymore, assuming you have a determined enough judiciary...

I thought I was the only one who still got a cold sweat when that interpretation of our consitutional rights got slide in there, that whimiscal little "asipirational" bit is going to come back to haunt us.

Sangre

Its only the judiciary realising that the Constitutional is outdated.

You can't be blasphemous or seditious...but you have freedom of speech and religion....whhaa?

Yeah
Its a crazy old constitution here.

And Duffman points out a pertinent point, the EU 'Constitution' only hold sway in areas of EU competence.

Victor

Sangre wrote:

You can't be blasphemous or seditious...but you have freedom of speech and religion....whhaa? Yeah Its a crazy old constitution here.

Go read it again or get someone to explain it to you if you can't understand it.

johnKarma

Whoever wrote this article obviously isn't a lawyer. It's technically inept, laced with inaccuracy and amounts to little more than scaremongering.

The crux of this idiot's argument is that the Charter will lead to the limitation of free speech in the EU because Article 53 thereof provides that nothing in the charter "shall be interpreted as implying any right to engage in any activity … aimed at the destruction of any of the rights and freedoms recognized in this Charter or at their limitation."

So, the argument goes, speech advocating the reintroduction of the death penalty could safely be banned, because such speech would obviously be "aimed at the destruction" of the right to life recognised in Article 62 which outlaws capital punishment.

This is utter nonsense for two reasons:

1) The European Constitution will provide for the accession of the EU to the European Convention on Human Rights. The European Court of Human Rights in Strasbourg provides very rigorous protection for the right to free speech. The UK, which has a relatively high standard of protection for free speech has even been held to be in breach of Article 10 of the ECHR in the past. The standard of rights protection under the European Constitution will never be allowed to fall beneath this "gold standard".

2) His argument disregards the limited scope of application of the Charter of Fundamental Rights. The Charter will be binding on the Institutions of the European Union, but ONLY has application against the Member States where they are implementing European Union Law. It is therefore designed to be a bulwark against rights infringements by the European Institutions. It is NOT intended to replace rights protections that exist already on the national level. So, while a ban on incitement to homophobia may be acceptable by Swedish standards, it may not be acceptable by UK standards. Either way, the charter is irrelevant, unless it is the European Union institutions that create the ban - something that would never happen.

Wise up folks, when the time comes for the Irish referendum on the EU constitution we're going to be subjected to a lot of this hyperbolic nonsense. Whenever you hear some right-winger spout tripe about the EU eroding your rights and liberties be sure to do a little research before you leap to any conclusions.

johnKarma

Sparks wrote:

But then again, Horgan v. State sets the precendent for all articles of the constitution to be declared "aspirational" so it really doesn't mean that much in terms of a legal judgement anymore, assuming you have a determined enough judiciary...

Not to be nitpicky, but it does no such thing. In the case you're referring to (text available here), it was held that Article 29 would not justify the Courts interfering with the state's foreign policy. This is a well-established principle and the court came to a perfectly reasonable conclusion. Here's the key quote from justice Kearns:

I accept the submission of the defendants that the Constitution is not to be treated like an ordinary statute. While it has precise legal provisions, it also has less precise provisions, such as those relating to fundamental freedoms. It also includes aspirational or declaratory provisions which cannot be made the subject matter of binding legal norms. The declarations contained in Article 29.1 – 3 seem to me to fall into this last category.

You can disagree with the decision to allow US planes refuel at shannon (so do I), but the courts are not well-equipped to determine our foreign policy, and can't interfere except in the most limited circumstances. To do so on the basis of Article 29 would be an outrageous usurption of power.

Sparks

It also includes aspirational or declaratory provisions which cannot be made the subject matter of binding legal norms.

I'm not entirely certain how that can apply to 29 and not to 40. The next sentence doesn't seem to be citing case law or anything more weighty than that judge's opinion on it either. And seeing as how you can argue that the entire consititution is an aspirational document in that nothing in it is not a social construct and therefore we aspire to follow its rules (as opposed to rules which are actually intrinsic to nature); I don't see how Horgan's judgement can't be applied to any other article. It would require a judge to wish to make such a judgement, yes; but that's hardly a reassuring condition!

johnKarma

Sparks wrote:

I'm not entirely certain how that can apply to 29 and not to 40. The next sentence doesn't seem to be citing case law or anything more weighty than that judge's opinion on it either. And seeing as how you can argue that the entire consititution is an aspirational document in that nothing in it is not a social construct and therefore we aspire to follow its rules (as opposed to rules which are actually intrinsic to nature); I don't see how Horgan's judgement can't be applied to any other article. It would require a judge to wish to make such a judgement, yes; but that's hardly a reassuring condition!

If you read the judgment I linked to, you'll see that the judge does cite caselaw to back himself up.

"First, Section 3 of Article 29 of the Constitution was not enacted, and is not to be interpreted in these courts, as a statement of the absolute restriction of the legislative powers of the State by the generally recognised principles of international law. As the Irish version makes clear, the Section merely provides that Ireland accepts the generally recognised principles of international law as a guide (ina dtreoir) in its relations with other States."

- Henchy J. in the State (Sumers Jennings) v. Furlong [1966] I.R. 183

The key difference is that Article 40 expressly creates rights that vest in individuals and which the state is bound to respect. Article 29 sets out principles that the State aspires to in its relations with other states. This is very easy to understand. It would be just as egregious for the courts to hold that article 40 is "aspirational" as it would be for them to hold that article 29 created enforceable rights against the state. Both fly in the face of the meaning of the document.

You can argue that the entire constitution is "aspirational" if you like, but that's a philosophical and not a legal argument. Judges determine which provisions create enforceable rights and which don't as a matter of textual construction. The judge came to the right conclusion in this case.

Sangre

Victor wrote:

Go read it again or get someone to explain it to you if you can't understand it.

Actually when the Constitution refers to blasphemousy and seditious acts it is defunct. Why? Because there is freedom of religion in the Constitution and they are just old common law terms without no meaning in a multicultural society.

And someone did explain it to, a professor in Constitional law.

What are you talking about?

secret_squirrel

nesf wrote:

Call me crazy, but I sleep better at night knowing that random stupid idiot x doesn't know how to make explosives. An extreme example, but valid nonetheless.

FYI : The recipe for a fertilizer bomb was freely available in the Encyclopidea Britannica before that useful source of information the internet came of age.

nesf

secret_squirrel wrote:

FYI : The recipe for a fertilizer bomb was freely available in the Encyclopidea Britannica before that useful source of information the internet came of age.

Point taken.

nesf

mycroft wrote:

But it's the use of extreme examples that allow curtailing of our rights to occur. The anarchist cookbook is a basically harmless text, and someone who is commited to terrorist attacks is going to need and will easily find far more effective ways of bomb making. The basic principle of a fertilser bomb (ala world trade center in the 90s, and the olklahoma bomb) are realitivty simple for anyone with a moderate degree of chemistry and engineering to grasp. Restricting free speech in order to restrict knowledge is not an effective rule, and the potential abuse of such laws aganist people who object to government policy.

Legislation to make incitement to racial or religious intolerance, is a bit more pratical, however it generally falls flat on it's face because it's driven by a specific intance, anti nazi laws, or the current drafted legislation in the UK which Ruisdie claims would have led to his rest for writing the Satanic verses.

I agree, and as I said what I used were extreme examples. What I was arguing against was the concept of total free speech. I feel that some moderation of public discourse is going to play an important aspect of any society.

The problem is that a) we are human, and humans will abuse laws to further their own agenda and b) it is extremely hard to come up with hard and fast rules that restrict public speech for the good of the public, while at the same time allowing free speech and debate on contentious issues.

My points were only meant to illustrate the danger of total freedom of information. The actual implementation of any rules to moderate speech on the other hand is very much open to debate? Do we want a nanny state that tries to protect it's children at every turn, or do we trust people to use common sense and not blow themselves up? Neither option is good really.

While a million people might read the recipie for a fertilizer bomb in a book, it only takes one idiot to decide he wants to set off a bomb in the middle of a public street for society to suffer. Is it justifiable to restrict said information just to make some attempt to stop this one person from having access to it? 99+% of people would act responsibly with it and not do anything wrong with it.

It is not so much that the information is inherently wrong or evil, it is just that people have the capability of such actions and society does have a right to try and protect itself.

This is an argument as old as time itself, I'm just rehashing already debated points really. It all comes down to how and where we draw the line between what information should be publically available and that which should be restricted.

Capt'n Midnight

In this country most chemicals that could be used to make explosives are banned or have restricted access or in the case of some fertilizers have bulking agents added to make it more difficult to explode. By contrast in the good old USA they've caught people with up to a ton of cyanide.

As for terrorists and atomic weapons - weapons grade uranium doesn't even need a detonator you could simply drop one sub critical mass on to another from a height of about 5m. [watching films / discovery channel is all you need to tell you how to make bombs !] Plutonium needs fancy exlosive lenses to get Maximum yield - but if all you want is a dirty bomb then you could knock something together that would have a yield of hundreds of tons rather than kilotons. Uranium is dead easy to render unusable - just mix it with depleted uranium - it would cost Billions to separate. Plutonium can be separated chemically from other materials so it should be banned in the same way we ban fireworks etc. - because the information is already out there - you can't put that genie back in the bottle .