The paper deals with the freedom of expression (freedom of speech) restrictions in a democratic state. The freedom of expression is one of the basic political freedoms, but it (as the most of the rights and freedoms) has indispensable limits.

The measure of limits on the freedom of expression is the key problem in every democratic society, because – as the European Court of Human Rights («the European Court») once mentioned– «freedom of expression constitutes one of the essential foundations of such society and one of the basic conditions for its progress and for the development of every man.»

The European states, that had signed the European Convention on Human Rights («the European Convention»), the main freedom of expression legal source (besides constitutions of these states) is proclaimed by Article 10 of the European Convention. Therefore, the European Court decisions concerning the freedom of expression and containing interpretation of Article 10 of the European Convention create for the legislative and judicial authorities in European states the main guideline in particular for the courts in the course of law application.

Article 10 paragraph 1 of the European Convention provides: «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.»

But the freedom mentioned is not unlimited. These relevant limits of such freedom are enshrined in paragraph 2 of this Article. Every state, which signed the European Convention, has the duty to regulate freedom of speech always in accordance with this Convention and cannot overstep these limits. Paragraph 2 of Article 10 provides: «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.»

Consequently, limits of expression shall be

• prescribed by law (formal condition),
• necessary in a democratic society (material condition),
• in the above enumerated interests.
• There are two main questions for the state authorities that make law and apply this law: how to interpret the terms «law», «prescribed by law» and «necessary in the democratic society».

The definition «prescribed by law» is interpreted by the European Court by means of two requirements:

• the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case,
• a norm cannot be regarded as a «law» unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Moreover the European Court observes that the word «law» in the expression «prescribed by law» covers not only statute but also unwritten law.

The adjective «necessary» (in formulation «necessary in democratic society») implies a «pressing social need». It means whether the interference in the freedom of speech corresponds to such a need, whether it is «proportionate to the legitimate aim pursued» and whether the reasons given by the national authorities to justify it are «relevant and sufficient».

For the better understanding we can compare this European conception of the limitation of the freedom of expression with the conception applied in the USA.

We can find some difference, because there are no explicit limits of this freedom in the US Constitution. The freedom of speech (expression) in the USA is enshrined in the First Amendment of the US Constitution, which states «Congress shall make no law … abridging the freedom of speech or of the press».

Some lawyers once said that «no law means no law» and so it is unconstitutional to prohibit any kind of expression, because there is no definition «no law except …» in the US Constitution, there is only the definition «no law». Nevertheless most of the judges find the need of some necessary limits of such freedom and, therefore, these limits were and are formulated by the United States Supreme Court in its decisions.

The US Supreme Court stated a well-known doctrine called «clear and present danger doctrine» which lies in the decisions on the conflicts of the freedom of expression (or another political rights) on one hand, and national security and integrity, preservation of the public peace or prevention of the racial hatred and many other public interests protection on the other hand.

In the leading case of the clear and present danger doctrine Schenck v. US (1919) the Supreme Court (in the concrete Justice O. W. Holmes) stated that «The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.»

The main criterion of some expression legality is the actual circumstances under which the expression occurs (for example, the war time). This original version of clear and present danger test is not so rigorous as recent conception.

In the recent leading case Brandenburg v. Ohio (1969) the Supreme Court emphasized probability and imminence of the danger arising from the expression: «…constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action».

Thus, it is necessary to distinguish between the meanings, advocacy, abstract teaching or abstract incitement on the one hand and the expression that can produce the clear and present danger of concrete imminent lawless action on the other hand.

As the US Supreme Court stated, «…the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.»

Therefore, it is legal in the United States to propagate fascism, racism, anti-Semitism, racial-hatred and discrimination, to wear fascist or nazi symbols or publish the literature of propaganda. The state can prohibit some kind of speech only if the speech may cause some danger that is clear, present, imminent and probable. We must distinguish between the sentences as «races are not equal, black people have no right to live» and for example, «let’s go to kill this black man». There is a striking difference in imminence and probability of some danger.

The European conception is more rigorous. In Europe we prohibit many expressions although there is no danger or the danger is only latent, potential and uncertain. For example in the Czech republic (like in most of the European countries) there are some verbal crimes which prohibit only expression of meaning – for example, propaganda of fascism or another similar movement or denying of the holocaust, Defamation of a Nation, Race, Ethnic Group or Conviction, Incitement of Hatred to Group of People, Approving a Crime, Instigation, offence of state authority.

To summarize, in Europe we regulate some expressions because of their content, not only because of any imminent danger it may carry. In the USA the content-based regulation is unconstitutional, so it’s impossible to prohibit the speech only due to its content – the regulation must be content-neutral.

It’s very difficult to say which conception is better. Here in Europe we are afraid of dangerous or offensive meanings, ideas, ideologies or teachings, because we have a very bad experience based on numerous wars and totalitarian regimes based on such ideologies.

In the USA it is believed in a free market of ideas and meanings – it is considered that the danger of state prohibition on some expression is always worse than danger of such expression itself. As Justice Holmes stated, «…the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market …«.

In the end, I would like to quote a classical ciatation of the US Supreme Court Justice Brandeis dating from 1927, which summarizes the liberal American view on the problem of the freedom of speech: «…without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; …the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.»

Literature:

1. Abraham, H. J. – Perry, B. A.: Freedom and the Court – Civil Rights and Liberties in the United States, 6th ed., Oxford University Press, New York, 1994
2. Barron, J. A. – Dienes, C. T.: First Amendment Law, 2nd ed., West Group, St. Paul, 2000
3. Bartoň, M.: Svoboda projevu a její meze v právu ČR, Linde, Praha, 2002 (Barton, M.: Freedom of Expression and Its Limits in the Czech Republic Law, Linde, Prague, 2002).
4. Directorate of human rights: Case-law concerning Article 10 of the European Convention on Human Rights, Council of Europe, Strasbourg, 1999
5. Farber, D. A.: The First Amendment, The Foundation Press, New York, 1998