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.
ECHR Article 10: Right to Freedom of Expression
Like Articles 8(1) and 9(1), Article 10(1) specifies in its second sentence what it protects in apparently plural terms: opinions, information, and ideas. However, Article 10(1) elaborates the second sentence in the light of the first sentence. Thus, unlike Article 9(1), and definitely unlike Article 8(1), Article 10(1)’s text itself clarifies that opinions, information and ideas are all different instances of expression. To the extent that Article 10(1) may give its reader an impression that, say, holding opinion, receiving information, or imparting ideas operates by itself like an automaton, the third sentence offers a quick clarification, with important normative effects. Albeit everyone has the rights mentioned in the first two sentences of Article 10(1), certain forms of regulating communication media sculpts the context within which these rights largely work and within which such exchanges largely occur. Even on its own terms, Article 10(1) does not need to refer to Article 10(2) to pinpoint a legal restraint (even if, initially, in wide- ranging but weak sense) at work vis-à-vis the rights that Article 10(1) protects. Then, Article 10(2) further gestures to the context of the rights mentioned in Article 10(1).
Importantly, Article 10(2) is unique in two general respects. First, in the entire Convention, only Article 10(2) expressly refers to ‘duties and responsibilities’ that a rights-holder bears because of its rights.67 The text itself explicitly pinpoints – what is
in fact obvious in its case law and in legal theory – that expressions are not free of
67 I do not deny the contextualization of rights in the light of specific duties and responsibilities that exists
in the ECtHR’s case law. In the context of applying Article 6(1) to civil service employment disputes, the ECtHR noted the necessity of adopting ‘a functional criterion based on the nature of the employee’s duties and responsibilities’ (Pellegrin v. France, para. 63). Albeit the case law may speak of ‘duties and responsibilities’, only the text of Article 9(2) explicitly mentions it. Thus, it remains unique in the framework of the Convention.
legal consequences and concerns. Second, among all the express limitations to rights mentioned from Articles 8 to 11, Article 10(2) is unique in a dual sense. First, Article 10(2) refers to ‘formalities, conditions, restrictions, or penalties’. Contrastively, other articles only refer to limitations in one sense, i.e., ‘interferences’ (Article 8(2)), ‘limitations’ (Article 9(2)), or ‘restrictions’ (Articles 11(2)). Second, as one can see from its text, Article 10(2)’s list of reasons in the light of which the public authorities can legitimately limit Article 10(1) rights is the most extensive (see, Table 6.1). To the extent that the list of restrictions and limitations rather make it possible for us to discern by implication the centrality of that thing one restricts and limits, Article 10 stands out in an important sense. In fact, we can argue that both the graded possibilities through which the public authorities regulate the exercise of Article 10(1) rights and the extensive reasons because of which the public authorities limit the exercise of Article 10(1) rights pinpoint something important. That is, this fact helps us discern the centrality of Article 10 rights vis-à-vis all the other related rights that contain express limitations, i.e., Articles 8, 9, and 11.
Further, both the preparatory notes of Article 10 and Article 10’s case law pinpoint the fact that the right to freedom of expression underpins a democracy as envisioned by the Convention (e.g., Handyside v. the UK, para. 49). That is, the rights and freedoms that Article 10 protects act as a pillar whereby a democracy (procedural, electoral) becomes a ‘democratic society’. Thus, albeit related articles remain fundamental to a democratic society, the point on which Article 10(1) (i.e., the right) and Article 10(2) (i.e., its limitations) overlap possesses the same normative understanding and priorities, at least, as far as the idea of ‘necessary in a democratic society’ is concerned. Thus, not only the legal system of democratic society can subject the right to freedom of expression to limitations, but also a legal system that guarantees the right to freedom of expression makes the democratic society possible which the Convention envisions.68 Consequently, to a pronounced sense in Article 10, the
relation between the right (i.e., in the light of the act it protects) and the law (i.e., in the light of the social system it serves) is co-constitutive. That is, law protects expressions whose form and content respect the limitations that are necessary in a democratic society. Alternatively, such legal and normative constraints allow expressions to forge and strengthen a democratic society. Thus, Article 10 is not a negative right of a rather ‘natural’ sort. In the sense that one would understand the communicative exchanges to occur in a society by themselves and law would ex post facto construct rules that
68 Thus, what law protects (and how) is as important as what law limits (and how). For example, it is
obvious that totalitarian societies do not substantively guarantee the right to freedom of expression. However, generally speaking, they also do not explicitly outlaw it, i.e., by inserting a rule akin to an antithesis of Article 10 in their basic laws (e.g., ‘No one, or only the select few, have the right to freedom of expression’). Nevertheless, the way they limit expression allows bureaucratic and judicial authorities to more thoroughly regulate expressions. Thus, the way legal systems construct rules concerning limitations and the way it interprets them also allow us to discern whether a legal system guarantees freedom of expression or not. Consequently, in the ECtHR jurisprudence, the case law of Article 10 is largely the case law of Article 10(2).
prevent the public authorities and certain social actors to interfere into such exchanges unjustifiably (and where the former domain always has a fundamental normative priority).
Given the aforementioned overlap between act and context underlying Article 10’s normative structure, legal and political theorists consider the guarantee of the right to freedom of expression as a guarantee of political freedom tout court (Waldron 2012, 173, Dworkin 2009, v–ix, Norris 2008, 186, Raz, 1994, 39, Mill [1859] 1992, 53-54). Consequently, legal and political theorists, aware of the legal landscape within which Article 10 works, usefully argue that the rights protected by Article 10 operate in a certain context, e.g., open and public deliberation, public debates (e.g., Griffin 2008, 49-50, Buchanan 2013, 62). Albeit not simply a matter of right per se, they tell us that the context remains a matter of legal attention and regulation. Indeed, the ECtHR has considered Article 10’s case law important in three senses. First, Article 10 positively obliges the public authorities in certain situations. Second, Article 10 remains helpful in constructing broader rules and regulations concerning the optimum circulation of expression. Third, Article 10 is important not only in analyzing the specific uses of expression but also in helping the legal system strengthen a milieu within which such exercises of rights and freedoms occur. Consequently, legal and political theorists focus on Article 10 either to rationalize judicial interpretation, or to develop normative benchmarks to evaluate the case law, or to explore the general role of interpretation in the context of a democratic political system. However, to the extent that legal and political theorists ignore the influence of the context on the rights-holders’ expressions or ignore the fact that the context remains more than the cumulative discursive inputs of rights-holders, their narratives either remain incomplete at best or contradict their initial insights at worst. The later (i.e., contradiction) in the sense that they tell us that Article 10 works as an effective right only in a context (i.e., a positive right in substance), albeit the regulation of rights-holders’ expression does not affect their status as expressing subjects and leaves them in the same way as it found them (i.e., a natural right in effect).
In this chapter, I argue that the right to freedom of expression protects expression by opening up language to legal regulation. I begin by seeing how the case law correlates the problematic of legal protection of an expression: a) with those legal methods that conceptualize and interpret the meaning of an expression; b) with those normative principles that underlie a democratic society. Consequently, Article 10(1) maintains its independent normative basis by allowing Article 10(2) to regulate expressions differently (§4.1). Then, I focus on the dynamic that rationalizes ‘formalities, conditions, restrictions, or penalties’. I argue that only when rights tailor the context in a certain way can we then see a ‘natural’ exercise of Article 10 rights to take place in a rights friendly society. Thus, the structure of Article 10 imposes both positive and negative obligations on the public authorities. Additionally, it conceptualizes rights-holders’ duties contextually (§4.2). Finally, I discuss how the context of Article 10 presupposes
a legal and political system, wherein freedom is both the reference point and the result of governmental practices. As such, one can say that the legal decision for or against an exercise of the right to freedom of expression turns onto the question of expressing subjects, and hence to their appropriate management (§4.3). Finally, the chapter ends with some concluding remarks. The conclusion pushes this inquiry in the direction of the questions related to law and organized social power, i.e., Part II (§4.4).
In order to argue out my points, I draw on the insights of legal and political theorists to see how legal rules based on Article 10 correlate the problematic of legal protection of an expression with certain legal methods, contextual and normative issues, and interpretative tools. To the extent that the meaning of one’s expression constructs certain tailored legal responses and to the extent that the context of legal regulation influences one’s exercises of rights, I see how the impact of Article 10 on managing the conduct of rights-holders remains relevant to legal and political scholarship. More, I draw on contributions from a well-established tradition of linguistic theory that considers communicative exchanges as peculiar kinds of social actions.69 In fact,
without considering expression as a certain kind of social action, it is impossible to see how Article 10 rights could be justiciable, open to judicial interpretation, or analyzable in terms of expressions’ societal effects. Hence, the case law of Article 10 deals more thoroughly with interpretation – not simply that of precedents but also of the expression itself (e.g., hate speech, artistic, propaganda, obscene) – because it handles social actions that remain embedded with their linguistic form. Consequently, Article 10 is basic because it focuses on the question of language, which, as influential currents in linguistic theory and philosophical hermeneutics now tell us, is an important medium that partakes in the constitution of linguistic beings by enabling them to express themselves.70
§ 4.1 A tale of two forces: The force of language and the force of law
In this section, I see how Article 10’s case law interprets language uses in order to apply legal norms. Broadly, I argue two points. 1) Legal rules based on Article 10 determine whether law should protect communicative exchanges depending on the
69 By this, I mean the tradition in linguistic theory that explores the performative aspect of language by
focusing on speech acts. The word performative is that of J L Austin. In How to do things with words, Austin notes that some sentences perform acts. Think of a priest saying ‘I hereby declare you man and wife’. This speech act does not pinpoint something as being either true or false, in the sense that truth or falsehood did not pre-exist this assertion. In fact, given appropriate circumstances (e.g., the Church is not a sham one in Las Vegas), this speech achieves something; it acts. Other examples include naming or promising. We do something when we say something. Austin’s initial insights have inspired a number of philosophers of language, who have explored the relation of language, context, and meaning in their different ways.
70 E.g., ‘Insofar as one wants to be literally correct, it would be more appropriate to say that language
context that gives those exchanges and expressions their social meaning and significance. Consequently, even when Article 10’s case law deems specific uses of rights as protectable or non-protectable, Article 10 influences the context through its norms. 2) Albeit Article 10(2) variously limits Article 10(1) rights, it does not entail that Article 10(1) by itself remains inherently limited or that it applies the limitations to all rights-holders in a similar manner. Thus, it is only by correlating legal protection and regulation with legal/ linguistic interpretation that Article 10’s case law does not generate any normalizing social effects.
In order to do this, I read in this section a set of cases brought before the ECtHR that dealt with a single applicant: Sürek v. Turkey. In two cases, the Court granted the applicant’s request (No. 1, No. 3). While in the other two, it did not (No. 2, No. 4). This set of cases involved a major shareholder in a Turkish limited liability company owning an İstanbul-based weekly review Haberde Yorumda Gerçek (‘The Truth of News and Comments’). All the four applications submitted by the applicant dealt with the actions of Turkish government against the review’s coverage of the Kurdish situation in southeast Turkey. What is crucial to note is the way the use of language reconstructs the one who expresses it, and the way legal rules relate the addressee with the world that those expressions produce. I first analyze three of the applications: No. 1 (§4.1a),
No. 2 (§4.1b), and No. 4 (§4.1c). Then, I discuss some conceptual implications of our
readings of the case law (§4.1d).
§4.1a Sürek v. Turkey (No. 1)
On August 1992, the review published two letters by its readers: ‘Weapons cannot win against freedom’ and ‘It is our fault’. The first letter commented on the ‘war of national liberation of Kurdistan’ against the ‘fascist Turkish army’ (para. 11). The second letter advocated the idea that ‘if they won’t give, then we’ll take by force’ (para. 11). The national courts sentenced the applicant to a fine for the ‘propaganda aimed at the destruction of the territorial integrity’ and for publishing racist speech (paras. 15, 18). The applicant appealed to the ECtHR alleging a violation of its Article 10 rights.
The applicant claimed that the specific legal regime, i.e., anti-terror law, itself interfered with its Article 10 rights because it exempted itself from any criticism. More, the applicant argued that the said law drew out a vague linguistic domain into which an expression cannot enter lest it, through that very performative, ‘threaten the indivisible unity of the nation’ (paras. 45-47). However, Article 10(2) itself speaks about limiting Article 10(1) rights in the interests of ‘territorial integrity’. Given the procedural form adopted by the national authorities, the ECtHR deemed the measure as being ‘prescribed by law’. Consequently, the specific legal context importantly clarifies the scope, as per Article 10(2), of rights-holders’ ‘duties and responsibilities’. Further, the
said law (i.e., the anti-terror law) tackled a violent situation. It was in the light of rights and freedoms, duties and responsibilities that the national law screened those expressions, whose violence would deteriorate the already violent situation (para. 52). Thus, the question turned onto the way expression operated in such a light and within such a legal context. As such, law then interprets expression analyzing: 1) the form and content of the expression (Set α); 2) the effects and normative consequences of the expression (Set β). Only by interpreting expressions does law reconstruct the status of Article 10’s rights-holder as a matter of immediate legal interest. To the extent that rights-holder’s capacity to express something correlates the status of expressing person both with the context within which that person expresses something and with the world that that person’s expressions create, the legal regulation of expression sustains a context (i.e., rights friendly society) that places things in their proper positions.
In No. 1, such a two-pronged analysis of expression occurs. First: α. Given its use of phrases like “the fascist Turkish army”, “the Turkish republic murder gang”, “the hired killers of imperialism”, “massacres”, “brutalities” and “slaughter”, the letter stigmatized ‘the other side’ (para. 62). Given the fact that the letter communicated to its readers that the ‘recourse to violence’ was ‘a necessary and justified measure of self-defense’ (para. 62), the letter ‘stirred up base emotions’ (para. 62). Second: β. By naming the persons (i.e., military personnel), the second letter increased the vulnerability of the figures named to ‘physical violence’ (para. 62). Given this performative, the letters constituted the named military officers as vulnerable and addressed in general an audience at a time when one can reasonably assume that there exist individuals with violent tendencies willing to direct their violent energies against the named military officers. Consequently, law can enforce norms based on Article 10 not only within the communicative context of publicity and generality but can normatively constrain what enters into that context in the first place. It is because of this reason that ‘the public’ is both a normative idea and a concept that is normatively constrained. As such, ‘the public’ is something that one cannot naïvely equate with the literate population in general (para. 59) (c.f., Habermas 1996, 378).71 Thus, Article 10 remains mindful of
the potential violations of human rights, while bringing such considerations pre- emptively onto the legal plane. Hence, in No. 1, the ECtHR discerned no violation of Article 10.
Lest we miss the focal point, we need to see how α converges with β. The identity of the speaker (Set γ) acts as an enabling condition because of which the analyses of α
71 From the perspective of Article 10, proper limitations on what communication media can say or
publicize do not amount to censorship. Think of child pornography or personal threats. In this sense, the agentive transition to ‘the public’ is both normative (i.e., it presumes certain ideas befitting a collection of people) and positive (i.e., it does not come of its own as if ‘naturally’ and requires certain selection, effort, and strategies). In Fuentes Bobo v. Spain, the ECtHR emphasized that ‘Article 10 of the Convention [does] not guarantee unrestricted freedom of expression, even in press reports on serious questions of general interest’ (para. 45).
and β do not appear disjointed from each other. In fact, it is difficult to see how law can avoid interpreting rights-holders’ expression with respect to their identity and nevertheless protect different expressions differently. In No. 1, in a legally relevant sense, the rights-holder is a citizen (γa) of a democratic society (γb) and an owner of a
communication media (γc). This entails that the rights-holder’s expression has to: 1)
respect those legal rules and standards that are enacted with due process and in view of legitimate interests and necessities (γa1); 2) respect the delicacy of a national
security situation, and remain mindful of those whom it addresses (γb1); 3) circulate in
view of the communication rules and protocols, and contribute to the social discourse in a normatively constrained (e.g., non-violent) way (γc1). In fact, the set γ allows the
ECtHR to interpret ‘duties and responsibilities’ mentioned in Article 10(2) not simply with reference to Article 10(1) rights, but also with reference to the various social objectives that Article 10(2) later mentions.72 Thus, the interpretation of an expression,
and its legal protection, crucially hinges on such a fit between world and word. What law protects as a legitimate exercise of Article 10(1) rights does not precede those normative constraints that law attempts to elaborate in a specific case (α, β,γ).