SPEAKING POSITIVELY:
RETHINKING FREE SPEECH AND LAW
ANDREW T KENYON*
World Congress of Constitutional Law – Congrès mondial de droit constitutionnel, Oslo 2014
Workshop 14: New challenges to the freedom of the media
Free speech is classically seen in negative terms as a limitation on government action that
restricts speech. Although there have long been arguments that government also has an
obligation to act in support of free speech—in part because common free speech rationales
appear to involve more than a negative right—much free speech law adopts a purely
negative understanding. Here, assumptions within negative approaches to free speech are
examined and found unconvincing. There seems little reason to support the idea that free
speech exists primarily when the state is not directly limiting speech. If the analysis
presented here has plausibility, then new questions would emerge about what legal
limitations and obligations should be applied in the name of free speech and through what
methods. To explore what legal techniques could be utilised in this vision of supporting free
speech, illustrative examples are drawn from both law and media studies, including long case
law of the German Constitutional Court which has promoted aspects of positive free speech
for more than 50 years.
Introduction
Much free speech commentary explores three rationales said to underlie free speech: free speech is
seen as furthering a search for knowledge; supporting practices of politics, particularly democratic
self-government; and enabling self-development or autonomy. Free speech is also typically
considered in negative terms. It is a bare liberty requiring only the absence of government action, in
particular parliamentary or executive action. While that is the classical view,1 free speech need not
only be understood negatively. Substantial analyses argue that government has an obligation to act
for free speech. In part this arises because the rationales said to underlie free speech appear to
involve more than a negative right. However, in many countries what can be called positive free
speech has gained relatively little traction in formal law.
Negative approaches to free speech can involve various assumptions. This paper firstly explores
three such assumptions and suggests that they are unconvincing. There seems little reason to
support the idea that free speech exists primarily when the state is not directly limiting speech. If the
analysis has plausibility, then free speech would be understood not merely as a negative liberty but
also in positive terms. New questions would emerge about what legal obligations should be applied
in the name of free speech and through what methods. The paper then considers the recognition
given to positive free speech in broadcasting by the German Federal Constitutional Court, asking
what it suggests about free speech and the role of law, as one way to begin exploring those
*
Professor, Melbourne Law School and Joint Director, Centre for Media and Communications Law, University
of Melbourne; a.kenyon@unimelb.edu.au. This article has benefitted from research funding from the
Australian Research Council (DP0985337).
1
Lesley Hitchens, Broadcasting, Pluralism and Diversity (Oxford: Hart 2006) 39.
1
questions. They suggest lessons for free speech from the classic era of mass media, with continuing
relevance for contemporary conditions of networked digital communications.
Questionable assumptions in negative free speech
What might underlie approaches focused on negative free speech, on limitations against
government action? While government never stays uninvolved, let that be bracketed at this point.
The analyses drawn on here, largely taken on their own terms, make it convenient to use
commonplace terminology about government action. Frederick Schauer has suggested that
underlying negative free speech may be assumptions about ‘just what a communicative
environment—or a public deliberation—looks like when the government remains uninvolved’.2 The
three assumptions he offers are a useful starting point in thinking about positive and negative free
speech.
First, a position against direct government action might be based on an assumption that equality
exists in speech without government action. Such equality would mean all views could be present
and effectively communicated and free speech rationales about knowledge, politics and selfdevelopment would be supported. As Schauer notes, however, in commercial media environments
‘resources matter and more resources matter more’. As well as resources, factors such as race,
gender and class are all relevant to ‘who talks, who listens and who gets listened to’.3
In terms of who actually speaks and of who actually listens, and of what a listener actually
takes away from the speaker's speech, therefore, there seems little a priori reason to believe
that all of the inequalities of society in general are not replicated when speakers who are
unequal, for any number of different reasons, enter into the process of dialogue or
discourse.4
An assumption that, without government action, there is equality in public speech—in terms of
accessibility, capability, audience and effect—is clearly false. In those circumstances, everything of
‘value’ is not said, heard, understood or effective.
Second, negative free speech might follow from an assumption of rationality. Under it, ‘true
propositions’, whether of fact or value, would ‘transcend’ the inequalities of public speech.5 Truth
would out, as if through a market. However, as Schauer notes, ‘it seems odd to assume … distortions
of power and persuasiveness in the marketplace of ideas are not just as likely to produce a world in
which unsound propositions replace sound ones’.6 How effectively will truth emerge in practice,
given an audience’s prior beliefs and their relationship to the statement at issue, the speaker’s
reputation and ability, the intensity of communication and so forth?7 Rather, the context-dependent
2
Frederick Schauer, ‘Free Speech in a World of Private Power’ in Tom Campbell and Wojciech Sadurski (eds),
Freedom of Communication (Aldershot: Dartmouth, 1994) 1, 6.
3
Ibid 6.
4
Ibid 7.
5
Ibid 8.
6
Ibid.
7
Frederick Schauer, ‘Hohfeld’s First Amendment’ (2008) 76 George Washington Law Review 914, 924.
2
nature of knowledge has been explored extensively across many aspects of humanities and social
research. An assumption that rationality is achieved in social practices appears unwarranted.8
Third, a position against explicit government action for free speech might be based on an
assumption about relative harm. Perhaps explicit government action would be worse than the
alternative. Leaving speech to non-government forces might harm free speech goals less than
government regulation.9 That may be true in some situations, but it would not be ‘atemporal,
ahistorical and universal’.10 One might imagine particular regimes of media and of government that
could support the assumption, but equally many that would not. As I have considered elsewhere, the
assumption appears weak in both theoretical and empirical terms.11 Evidence is against such a
negative conception of free speech.
These assumptions—about equality, rationality and relative harmfulness—could be explored
through many branches of free speech literature.12 Here, I briefly consider the assumption about the
relative harmfulness of government action, in light of the extensive research into public media. The
focus is thus on media freedom rather than all aspects of free speech. Supporting public media is
quite a limited step in terms of what might be done by a state in support of public speech. But it is
useful to note here because some form of public support for broadcast media occurred in many
countries during the last century and the operation of public media has been subject to very
substantial analysis within media studies.13 Theoretical and empirical investigations of market-based
and public media offer evidence against an assumption that government action is necessarily
harmful. Some government action appears to be far from harmful in terms of democratic rationales
for free speech; the evidence would suggest that not having such government action is something
that fails free speech. As just one example, Stephen Cushion’s meta-study of more than 250 English
language publications about empirical research into public and commercial media shows that ‘public
service journalism’ is distinct from ‘market-driven news’.14 Regularly watching public service
broadcast news ‘appears to increase people's knowledge about the world’.15 It had similar beneficial
effects on civic engagement and political participation. Cushion concludes that common normative
claims about public service broadcasting—‘that it is the media system that most reliably serves
citizens in a democracy’—have empirical support.16 That sort of democratic rationale is, of course,
also very commonly offered in support of free speech.
This suggests that it could be better to conceptualise free speech as having positive as well as
negative aspects. Free speech would be seen to contain two principles, one against censorship and
8
Eg as Flyvbjerg suggested ‘the context of rationality is power’: Bent Flyvbjerg, Rationality and Power:
Democracy in Practice (translated by Steven Sampson, Chicago: University of Chicago Press, 1998) 2.
9
Schauer, above n 2, 12.
10
Ibid 13.
11
Andrew T Kenyon, ‘Assuming Free Speech’ (2014) 77 Modern Law Review 379.
12
Ibid.
13
As Cook has observed, the relative lack of intersection between research on free speech and the
performance of news media is surprising: Timothy E Cook (ed), Freeing the Presses: The First Amendment in
Action (Baton Rouge: Louisiana State University Press, 2005) vii.
14
Stephen Cushion, The Democratic Value of News: Why Public Service Media Matter (Basingstoke: Palgrave
Macmillan, 2012) 45.
15
Ibid 185.
16
Ibid 206.
3
one for diversity of expression. Judith Lichtenberg’s analysis offers a useful point of reference here.17
She outlines standard free speech rationales, seeing a multiplicity of interests within free speech,
and goes on to suggest those multiple interests can be grouped into two broad goals:
The first we may call the noninterference or no censorship principle: One should not be
prevented from thinking, speaking, reading, writing, or listening as one sees fit. The other I
call the multiplicity of voices principle: The purposes of freedom of speech are realized when
expression and diversity of expression flourish.18
Diverse, multiple voices are needed for free speech interests in democracy, and equally for
rationales about knowledge and autonomy. It is not speech as such, but debate and diversity of
ideas that are primary. And contrary to the assumption of relative harmfulness, government actions
promoting speech appear to be required. The first aspect of free speech is extensively debated in the
literature: what restrictions on speech can or should courts uphold, using what approaches to
analysis and decision making and so forth? The second aspect is less prominent. Positive free speech
requires the promotion of diversity in speakers, topics, audiences and modes of speech. Questions
for analysis concern that promotion of free speech: how would such action be conceptualised and
how, if at all, might law have a role in its regulation?
The German example of broadcasting freedom
As one way into examining the issues, I want to consider the situation of German broadcasting law
and the constitutional protection for free speech. The case law of the Federal Constitutional Court
offers one of the most developed examples of courts promoting positive free speech. For more than
50 years, the Constitutional Court’s decisions have set out detailed requirements about television
broadcasting drawing on the free speech protection in Article 5 of the Basic Law. Under Article 5,
positive aspects of free speech are necessary ‘to guarantee that the diversity of existing opinion is
articulated as broadly and thoroughly as possible and that comprehensive information is made
available.’ Market forces cannot achieve this end as they are ‘unable to prevent the accumulation
and abuse of power in the broadcasting sector.’19 The 16 Länder (states), which have constitutional
responsibility for almost all aspects of broadcasting law, are obliged ‘to establish the conditions
necessary for the effective exercise of speech rights’.20 Free speech is clearly both negative and
positive.
While Article 5 sits within particular constitutional, political and administrative traditions that are
relevant to understanding its domestic effects, my primary concern here is what the decisions
suggest more generally about free speech. The cases display ideas about free speech that challenge a
purely negative approach and they use legal techniques in support of positive free speech that could
have application beyond the German context. These ideas about, and techniques in support of, free
speech could be drawn on in many other formally democratic systems. Constitutions rarely require
free speech to be negative in character ‘so constitutional tribunals must determine themselves how
17
Judith Lichtenberg, ‘Foundations and Limits of Freedom of the Press’ in Judith Lichtenberg (ed), Democracy
and the Mass Media: A Collection of Essays (Cambridge: Cambridge UP 1990) 102.
18
Ibid 107.
19
Wolfgang Hoffmann-Riem, Regulating Media: The Licensing and Supervision of Broadcasting in Six Countries
(New York: Guilford Press 1996) 119.
20
Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke
University Press, 2nd ed 1997) 368; see also eg Hoffmann-Riem, above n 19, 119.
4
far, if at all, it is appropriate to recognize positive speech rights.’21 In assessing how that might be
done, the German experience is an invaluable starting point.
Article 5 of the Basic Law protects freedom of expression. Its first paragraph is conventionally
translated as:
(1) Every person shall have the right freely to express and disseminate his opinions in
speech, writing and pictures, and to inform himself without hindrance from generally
accessible sources. Freedom of the press and freedom of reporting by means of broadcasts
and films shall be guaranteed. There shall be no censorship.22
The second sentence of Article 5(1) guarantees ‘freedom of the press and freedom of reporting by
means of broadcasts’. While referring to ‘freedom of reporting’ in relation to broadcasts, the
protection is not narrow. Broadcasting freedom serves the wide free speech interests protected by
Article 5 as a whole; namely, free formation of individual and public opinion. In the court’s words:
Broadcasting freedom serves the same objectives as all the guarantees in Article 5(1) Basic
Law: the guaranteeing of free individual and public formation of opinion … [I]t is for
[broadcasting] to provide information in the greatest possible breadth and completeness; it
gives the individual and the social groups an opportunity for opinion-forming action and is
itself involved in the process of opinion formation. This comes about in a comprehensive
sense; opinion formation comes about not only in news broadcasts, political commentaries
or series on problems of the past, present and future, but also in audio and TV dramas,
musical presentations or entertainment broadcasts.23
Within this broad approach to the types of speech that come within Article 5, the court’s
‘monumental’ broadcasting decisions can be explored through six related aspects.24 These concern:
positive free speech; the dual broadcasting system; funding public broadcasting; internal pluralism; a
‘precautionary’ approach; and new media environments.
Free speech is positive as well as negative
First, free speech is not merely a negative liberty. The interests served by Article 5—individual and
public opinion formation—require the state both to respect and protect free speech. In this, free
speech is both negative and positive: ‘Its negativity protects the individual against official restraints
on speech; its positivity obliges the state and its agents to establish the conditions necessary for the
21
Eric Barendt, Freedom of Speech (Oxford: Oxford University Press, 2nd ed pb 2007) 101.
See eg http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0030.
23
73 BVerfGE 118 (1986) (Fourth Broadcasting decision). English translations of many of older free speech
decisions are available via the Institute for Transnational Law at the University of Texas:
http://www.utexas.edu/law/academics/centers/transnational. In general, they are used here; see also
Kommers, above n 20, Chapter 8 ‘Freedom of Speech’ for extracts of earlier cases; and Christopher Witteman,
‘Information Freedom, a Constitutional Value for the 21st Century’ (2013) 36 Hastings International and
Comparative Law Review 145.
24
Thomas Gibbons and Peter Humphreys, Audiovisual Regulation under Pressure: Comparative cases from
North America and Europe (Abingdon: Routledge 2012) 116. Similarly, Heun has noted the court’s
‘monumental and astounding construction of a constitutionally determined detailed broadcasting order’:
Werner Heun, The Constitution of Germany: A Contextual Analysis (2011) 221.
22
5
effective exercise of speech rights.’25 The requirements of opinion formation cannot be met by ‘a
mere negative duty’; instead, ‘a positive order is necessary, which ensures … the variety of existing
opinion is expressed … as widely and completely as possible and that in this way, comprehensive
information is offered.’26
In the German context, this approach arises through the way in which constitutional rights establish
‘objective’ principles beyond the subjective protections they give to individuals.27 The state clearly
has a ‘protective function’.28 I want to leave the details of that aside here, but note that a similar
result may be reached for free speech rights in other constitutional systems because of the very
nature of speech within a democratic constitutional order. That could follow, for example, from the
ways in which diverse and independent speech can be seen to have a special or primary role in
democratic self-government. That special quality and importance of speech is widely recognised, as
noted briefly below.
Free speech and a dual broadcasting system
Second, the Basic Law’s requirements for free speech can be met by a dual broadcasting system,
containing public as well as commercial broadcasting. In 1961, the court reasoned that spectrum
scarcity and broadcasting’s high costs necessarily limited the number of broadcasters. This meant a
public broadcasting monopoly, structured for internal pluralism, met the constitutional
requirements.29 By 1986, a dual broadcasting system was held to meet the requirements of the Basic
Law.30 Within the dual system, however, public broadcasting is the primary and vital element.
Commercial broadcasting, subject to lesser regulatory obligations, is constitutionally permissible
only where public broadcasting is able to meet the Basic Law’s mandate for individual and public
opinion formation.31 The Basic Law requires the ‘basic provision’ to come from public broadcasting.
While the term used is ‘basic provision’, it is not in any sense ‘a minimum provision to which public
broadcasting is confined or could be reduced’.32 It is a comprehensive service, available to the entire
population, containing substantial diversity of opinion.33
Public broadcasting requires adequate funding
Third, Article 5 requires public broadcasting to receive adequate funding through a relatively
depoliticised process. The fundamental requirements of free speech require public broadcasting to
25
Kommers, above n 20, 368 (emphasis added); and see eg the 1958 Lüth case, 7 BVerfGE 198.
57 BVerfGE 295 (Third Broadcasting decision).
27
See eg Heun, above n 24, 198-200.
28
Eg Dieter Grimm, ‘The Protective Function of the State’ in Georg Nolte (ed), European and US
Constitutionalism (Cambridge: Cambridge University Press 2005) 137.
29
12 BVerfGE 205 (1961) (First Broadcasting case).
30
73 BVerfGE 118 (1986) (Fourth Broadcasting case).
31
90 BVerfGE 60 (1994) (Cable Penny decision).
32
74 BVerfGE 297 (1987) (Fifth Broadcasting case).
33
83 BVerfGE 238 (1991) (Sixth Broadcasting decision). The same requirements were presented in a tripartite
form in the fifth broadcasting decision (74 BVerfGE 297): that is, transmission in a form that can reach the
entire population; a full scope of programming to allow for the constitutional guarantee of free opinion
formation to be met; and diversity in the presentation of opinion, pursued through organisation and
procedural measures.
26
6
be provided outside the control of both the market and politics: ‘Broadcasting may not be
abandoned either to the state or to any societal group.’34
One aspect of the required independence is independence from economic control. While allowing
private broadcasters to exist within a dual system, the court has emphasised that private
programming ‘cannot manage fully to do justice to the task of comprehensive information’.35 An
important reason given for this is economic, with private broadcasting relying primarily on
advertising income and thus large audiences.36 ‘Transmissions of interest to only a small part of the
audience and often—as especially the case with ambitious cultural transmissions—requiring high
expenditure will as a rule take second place, if not be entirely absent’.37 However, the court sees
such programming as vital for the comprehensive, universally available and diverse information
required by Article 5. The inherent weakness in private broadcasting to fulfil the requirements of
free speech means public broadcasting must be adequately funded, and the dual broadcasting
system entails a guarantee of public broadcasting’s existence, development and funding.38
Notable in the court’s analysis is the way in which economic liberties are seen as being quite distinct
from free speech. ‘Market opportunities may be a question of economic freedom, but not of
freedom of opinion.’39 The market ‘by itself, and by definition, cannot provide for a fully democratic
media’.40 The court has drawn on research in media economics to underpin broadcasting’s particular
qualities. Financing by advertising will lead to ‘a host of negative results’ including ‘standardisation’
of programming, ‘one-sided reporting’, and an ‘erosion’ of the identity of public broadcasting.41
Overall, it entails the possibility that content is determined by economic pressures rather than
journalistic standards.
As well as independence from markets, separation from politics is also required. Otherwise, funding
decisions could amount to indirect political influence on programming. The need for independence
from political pressure was addressed at length in the 1994 ‘Cable Penny’ decision.42 This established
that the legislature must structure an appropriate procedure for determining funding, with ‘a multistage, cooperative’ process ‘that limits the opportunities for political influence’ being most suitable
for the task.43 The procedure must begin from public broadcasters’ own assessment of their funding
34
90 BVerfGE 60 (1994) (Cable Penny decision). See also 83 BVerfGE 238 (1991) (Sixth Broadcasting decision).
73 BVerfGE 118 (1986) (Fourth Broadcasting case).
36
As well as pressures towards the largest audience in any given market, advertising-based funding also means
that comparatively wealthy audiences are favoured where circulation is not the largest in a market; see eg
Raymond Williams, The Existing Alternatives in Communications (London: Fabian Society, 1962) 6; Timothy E
Cook, Governing with the News: The News Media as a Political Institution (Chicago: University of Chicago Press,
2nd ed 2005) 168.
37
73 BVerfGE 118 (1986) (Fourth Broadcasting case).
38
90 BVerfGE 60 (1994) (Cable Penny decision). Advertising by public broadcasters must remain a
comparatively minor part of the funding, due to the ‘inherent tendencies to constrict programming and
variety’.
39
74 BVerfGE 297 (1987) (Fifth Broadcasting case).
40
Witteman, ‘Information Freedom’, above n 23, 196.
41
Christopher Witteman, ‘Constitutionalizing Communications: The German Constitutional Court’s
Jurisprudence of Communications Freedom’ (2010) 33 Hastings International and Comparative Law Review 95,
141-142.
42
90 BVerfGE 60 (1994) (Cable Penny decision); among subsequent decisions see in particular 119 BVerfGE 181
(2007).
43
90 BVerfGE 60 (1994) (Cable Penny decision).
35
7
needs based on their own programming decisions. Subsequent steps in the process cannot ‘judge
whether the broadcasters’ programming decisions are reasonable or sensible’.44 Instead, the only
issues are:
First, whether those decisions remain within the legal boundaries of public broadcasting’s
mandate; and second, whether the funding needs derived from these decisions were
established correctly and in accordance with the principles of efficiency and thrift.45
For the court, this makes it ‘a professional rather than a political task’.46 Any parliamentary funding
decision that deviates from the above process must be appropriately explained. Despite the court’s
characterisation of the task as professional, political battles about funding continued after 1994. In
2004, politicians reduced the funding below the level that had been approved by the relevant
committee, with some Länder negotiating ‘for structural reforms of public broadcasters, notably the
restriction of the number of their programmes’. In 2007, the court overruled the political decision.47
The departure from the established process was not sufficiently justified, and it breached the
constitutional requirement for adequate funding of public broadcasting.
In this approach, the court has enunciated a procedural protection within the constitutional free
speech right. Because the possibility of identifying and correcting a politically-driven funding
assessment is limited, relying on the usual ex poste legal avenues to correct illegality is insufficient to
‘satisfy the constitutional requirement of broadcast freedom’.48 Instead, a procedural protection
that aims to limits the possibility of political interference is required.
Internal pluralism and broadcasting councils
Fourth, internally ‘diverse’ councils for public broadcasters must exist with the aim of ensuring that
programming is not dominated by any particular interests or groups.49 In the words of the court’s
first broadcasting decision in 1961: ‘Broadcasters of programs must … be organised in such a way
that all conceivable groups are able to have influence in their organs and have their say in overall
programming.’50
Typically, state laws set out various ‘socially relevant groups’ from which membership of
broadcasting councils is drawn, such as ‘unions, business associations, religious groups, political
parties, and social groups of parents, teachers, women, sports fans, artists, and trade groups of
various kinds’.51 It is not intended that members represent the various groups from which they
come; rather they serve ‘as agents for the public interest’. The aim is to ‘secure diversity of opinion’
44
Ibid.
Ibid.
46
Ibid. The court also required the legislature to ‘define the panel’s task, composition, and procedure, as well
as insure the independence of its members … [T]he panel not only should contain no broadcasting
representatives, but also … no politicians.’
47
119 BVerfGE 181 (2007); see eg Gibbons and Humphreys, above n 24, 117; Witteman, ‘Constitutionalizing
Communications’, above n 41, 119-120.
48
90 BVerfGE 60 (1994) (Cable Penny decision).
49
There are also administrative councils, focused more on financial aspects of broadcaster management. An
overview is provided by Irini Katsirea, Public Broadcasting and European Law (The Netherlands: Kluwer Law
International 2008) 33-39.
50
12 BVerfGE 205 (1961) (First Broadcasting case).
51
Witteman, ‘Constitutionalizing Communications’, above n 41, 106 and its n 24.
45
8
in content and the broadcasting councils must take this into account ‘with the greatest possible
breadth and completeness’.52
This aspect of broadcasting freedom is, not surprisingly, only achieved to a limited degree. Two
aspects are notable for present purposes. First, the councils remain political in some respects. For
example, Wolfgang Hoffmann-Riem commented in the mid-1990s:
Originally conceived of as guarantors of independence from the state and other powerholders, the Broadcasting and Administrative Councils have … in reality emerged as agents of
political influence … The members of these bodies usually form coalitions along party lines,
meeting in so-called cliques … to agree upon joint conduct.53
Similarly, it was observed 20 years earlier that high quality programming was achieved ‘in spite of
the efforts of the political parties to influence’ the relevant broadcasting bodies.54 Even so, the
councils provide a level of ‘community-based legitimacy apart from the state political apparatus’,55
and the idea of independence they embody should allow greater critical evaluation of their
performance where it is partisan. In addition, the multi-state approach to broadcasting, with
regularly updated inter-state agreements, limits the ability of any one group to dominate national
public broadcasting.56
Second, there are questions about the degree of diversity achieved in practice within the councils.
Germany can well be called a ‘grand coalition state’ with a consensus model of democracy.57 The
‘socially relevant groups’ are those that register within this conception of democracy. There is a
tension between aiming to produce diversity through relying on already existing and relatively
‘established’ social groups. The resulting media content may reflect existing mainstream opinion
more than the idea of a diverse broadcasting council could suggest. For example, research into
broadsheet newspaper coverage of contentious public debate suggests how, in Germany, ‘political
parties and state actors’ can dominate media content; ‘institutional position’ is ‘much more
important than experiential knowledge’ for journalists assessing the credibility of different voices;
and there is a danger of excluding ‘noninstitutional actors’.58 Diversity for media professionals
appeared to encompass officially sanction groups and representatives more than it included diffuse
civil society actors.
52
83 BVerfGE 238 (1991) (Sixth Broadcasting decision).
Hoffmann-Riem, above n 19, 124. Similarly, Katsirea comments ‘in practice Broadcasting Councils are often
dominated by political parties’: above n 49, 38.
54
Arthur Williams, Broadcasting and Democracy in West Germany (Bradford University Press 1976) 120.
55
Witteman, ‘Constitutionalizing Communications’, above n 41, 106.
56
Concentration of ownership in commercial media also raises constitutional issues, but in practice ownership
became highly concentrated soon after the emergence of commercial broadcasting; see eg Peter Humphreys
and Matthias Lang, ‘Regulating for Media Pluralism and the Pitfalls of Standortpolitik: The Reregulation of
German Broadcasting Ownership Rules’ (1998) 7 German Politics 176. Concentration has continued in terms of
advertising revenue, with more than 80% of commercial TV advertising revenue going to two media groups in
2009: Sebastian Müller and Christoph Gusy, ‘The Case of Germany’ in Mediadem Consortium, Background
Information Report: Media Policies and Regulatory Practices in a Selected Set of European Countries, the EU
and the Council of Europe (2010) 196, available via http://www.mediadem.eliamep.gr/findings.
57
Eg Heun, above n 24, 229.
58
Myra Marx Ferree, William A Gamson, Jürgen Gerhards and Dieter Rucht, Shaping Abortion Discourse:
Democracy and the Public Sphere in Germany and the United States (Cambridge: Cambridge University Press
2002) 8, 256, 279.
53
9
One might expect greater diversity to exist in public broadcasting than in newspapers, due in part to
the council structure, and such diversity has at least been reported in the past. The public
broadcasting monopoly until the mid-1980s is said to have provided ‘comparatively high quality,
relatively independent and highly pluralistic and diverse national and regional television services’.59
However, some caution appears to be warranted in thinking that the form of internal pluralism
pursued by the court is necessarily sufficient for the free speech goals involved. (This is considered
further in the conclusion below.) In addition, caution arises because the legislature has a ‘wide
discretion’ in determining which groups are relevant.60 For the court:
Who in particular belongs among the societally relevant forces cannot be discerned from the
[broadcasting freedom]. Consequently, as a matter of principle it is for the legislature to
determine how the boards of overseers shall be formed. It enjoys wide latitude in doing so.
This latitude encompasses the power to give specific contours to the criterion of societal
relevance; to ascertain which forces shall be considered; to designate which groups shall be
ascribed to such forces; and to select from among these groups those that may appoint
members to the board and in what percentages.61
Composition that was ‘grossly one-sided’ would breach Article 5, but ‘over- and underrepresentation of comparable groups, if these do not amount to gross distortion, are not
objectionable in terms of broadcasting freedom.’62
A ‘precautionary’ approach for broadcasting freedom
Fifth, the importance of free speech means the court takes a ‘precautionary’ approach and is wary of
leaving broadcasting developments purely to commercial or political processes. The role of speech in
opinion formation gives it a position ‘prior to’ many other constitutional rights. This foundational
role for speech is recognised within many democratic systems. It is seen even in Germany, where the
right to dignity under Article 1 of the Basic Law takes precedence over, and influences the
interpretation of, all other constitutional rights. With regard to the special position of speech, in its
classic Lüth decision the court stated:
The basic right of freedom of opinion is the most immediate expression of the human
personality in society and, as such, one of the noblest of human rights ... It is absolutely basic
to a liberal-democratic constitutional order because it alone makes possible the constant
intellectual exchange and contest among opinions that form the lifeblood of such an order;
it is ‘the matrix, the indispensable condition of nearly every other form of freedom.’63
The quoted words ending this extract come from the US Supreme Court Justice Benjamin Cardozo.64
Here, their use underlines how the Federal Constitutional Court sees this primary quality of speech
as inherent in, at the least, any formal democratic constitutional order. The importance of speech
means the court takes a cautious approach to the possibility of any ‘concentration of power’ over
59
Gibbons and Humphreys, above n 24, 112.
Katsirea, above n 49, 37.
61
83 BVerfGE 238 (1991) (Sixth Broadcasting decision).
62
Ibid.
63
7 BVerfGE 198 (Lüth case).
64
Palko v Connecticut, 302 US 319, 327 (1937).
60
10
public opinion. Caution is warranted because ‘when emerging developments prove to be faulty, they
can only be rescinded—if at all—to a certain degree and only with considerable difficulty.’65 Because
speech is believed to underlie the possibility for realising many other rights, it requires a special form
of protection. In short, because speech is believed to have some degree of individual and collective
effect and necessarily to be implicated in wider social, cultural and political processes, speech needs
special treatment. There is nothing about that idea limited to the German constitutional context.
One aspect of the approach in Germany can be seen in the limited and prescribed roles given to the
executive and the legislature. Neither arm of government can be left to deal with broadcasting
merely as a matter of policy. The free speech rights involved mean the court sets out particular
requirements that the legislature must meet; requirements which, in turn, restrict the power of the
executive. Free speech is protected, in effect, by a combination of court and legislature. ‘That which
is essential for guaranteeing freedom of broadcasting must be determined by parliament itself; it
may not leave the decision on this to the executive.’66 Equally, the court limits the legislature’s ability
to choose some approaches. The legislature cannot, for example, limit public broadcasting to its
current technological basis.67
Changing media environments do not necessarily change the analysis
Sixth, despite changing media environments—in particular the development of digital media and
huge changes in media platforms and practices—the court has largely maintained its analysis.68 It is
true that in some areas the court has modified its reasoning to achieve the same end point; for
example, moving from spectrum scarcity to economic pressures in justifying the primary role of
public broadcasting under Article 5.69 Overall, however, the court has not given broadcasting any
technologically-specific meaning and has maintained a functional approach.70 The constitutional
meaning of broadcasting changes ‘in step with factual changes in the social realm’71 and the
constitutional guarantee ‘would be breached if the legislature were to limit public broadcasting to
current levels of development in programming, funding, and technology’.72 If other forms of
transmission replace terrestrial broadcasting, the court has said that ‘the guarantee of basic service
will encompass’ the new forms.73 Equally, public broadcasters’ programming cannot be constrained
to existing forms:
[It] must remain open for new audience interests as well as new forms and content.
Dynamic and open both in terms of topics and times, the concept of basic service is bound
only to the function that broadcasting must fulfil within the framework of the
communication process protected by [Article 5].74
65
57 BVerfGE 295 (Third Broadcasting decision).
Ibid.
67
Eg 83 BVerfGE 238 (1991) (Sixth Broadcasting decision); 119 BVerfGE 181 (2007).
68
Eg 119 BVerfGE 181 (2007).
69
Cf 12 BVerfGE 205 (1961) (First Broadcasting case); 73 BVerfGE 118 (1986) (Fourth Broadcasting case); and
119 BVerfGE 181 (2007).
70
74 BVerfGE 297 (1987) (Fifth Broadcasting case).
71
83 BVerfGE 238 (1991) (Sixth Broadcasting decision).
72
Ibid.
73
Ibid.
74
Ibid (emphasis added).
66
11
Thus, in its 2007 decision the court reiterated that: ‘The requirements posited by the Federal
Constitutional Court for the legal organization of broadcasting, to secure broadcast freedom … are
not rendered moot by the development of communications technologies and media markets.’75 In
addition, the court ‘hinted throughout [the decision] that those requirements could well apply to the
new technologies.’76 While the 2007 decision ‘explicitly confirmed the right of the PSBs to develop
new media activities’,77 regulatory agreements have been reached that appear to limit the practical
ability of public media to achieve public service aims online.78 (The history of state aid battles in
relation to public broadcasting under European law are left to one side here.79) As Runor Woldt has
commented, the position of public media in an evolving media environment can be expected to
return to the court for further decision in the future.80 Public media is a constitutional question not
merely a matter of policy choice, and both theory and experience suggest politicians will fail the
constitutional test.
Beyond the German context, it might be thought that digital networked communications mean that
positive free speech arguments have only historical interest. There are certainly substantial changes
in communicative environments and access to speakers is more open in many ways than in earlier
periods of broadcasting. However, there is a long history of exaggerated and misplaced belief that
new communications technologies would ameliorate problematic aspects of social, political and
economic life. The idea that concerns about free speech have been addressed through the greater
technical possibilities for speech is not yet established. The Internet is not exempt from ‘corporate
dominance, market concentration, controlling gatekeepers, employee exploitation, manipulative
rights management, economic exclusion through “tethered appliances” and encroachment upon the
information commons’,81 and one could add mass surveillance to that list. Despite the changed
environment of digital communications, caution seems warranted. Among other grounds, there are
concerns based on the longstanding economic pressures that apply to media—as noted by the
Federal Constitutional Court and a long history of work on the political economy of the media.82
Costs associated with producing and publicising content remain important. In those ways, real
scarcity remains. And as amateur content takes on new roles in public communications it is worth
remembering that an unpaid activity is not by that reason egalitarian.83 The media segmentation
noted by Baker—segmentation along commercial not democratic lines—is being reshaped, but there
is no reason to think that it is disappearing. Indeed, it many ways it may be becoming more
pervasive with processes of digital enclosure and surveillance. Consider, for example, the
75
119 BVerfGE 181 (2007) at its headnote 1 (translation from Witteman, ‘Constitutionalizing Communications’,
above n 41, 175).
76
Witteman, ‘Constitutionalizing Communications’, above n 41, 175.
77
Gibbons and Humphreys, above n 24, 117.
78
See eg Runar Woldt, ‘Public Service Broadcasting in Germany: Stumbling Blocks on the Digital Highway’ in
Petros Iosifidis (ed), Reinventing Public Service Communication: European Broadcasters and Beyond
(Basingstoke: Palgrave Macmillan 2010) 171, 178-80.
79
See eg Gibbons and Humphreys, above n 24, 118-125, 154-161.
80
Woldt, above n 78, 181.
81
James Curran, Natalie Fenton and Des Freedman, Misunderstanding the Internet (Abingdon: Routledge,
2012) 180.
82
See further Kenyon, above n 11.
83
Eg Jacob Rowbottom, Democracy Distorted: Wealth, Influence and Democratic Politics (Cambridge:
Cambridge University Press, 2010) 236: ‘To make journalism an unpaid profession would hardly be to make it
egalitarian’.
12
possibilities for media customisation linked to new advertising practices that are arising with mass
data collection and analysis. Joseph Turow sees ‘the future belong[ing] to marketers and media firms
… that learn how to find and keep the most valuable customers by surrounding them with the most
persuasive media materials.’84 It is far from evident that the non-censorship and diversity aspects of
free speech would be addressed in such an environment, any more than they were under mass
media conditions; even less is it clear that only one aspect of free speech—that is, non-censorship—
will remain important to consider.
In addition, there are questions about the effects that different communication forms have. In
relation to political rationales for free speech, what are the effects of Internet communication?
While that raises complex questions about politics and communication, contemporary research—
including empirical work—notes the overall weight of institutional media and of continuing forms of
press and broadcast communication. No doubt some points of control have changed, with the
regulation of Internet-related infrastructure having clear relevance to free speech. But if one is
seeking to promote ‘an embodied process of effective speech’85—and to do that in face of modes of
government that undercut the value of such voice—it is far from clear that the access allowed by
Internet communication is sufficient in itself.
Pressures on journalism have also increased drastically with increased numbers of communication
channels, fragmented audiences, revolutions in advertising linked to digital data and surveillance,
and highly geared debt in much institutional media (perhaps especially in the US). There are fewer
resources to produce the expensive forms of journalism that have commonly been seen as valuable
in terms of media performance and public knowledge. This leads to another implication of the
changing media environment; namely, the visibility and resonance of positive approaches to free
speech could increase. Insofar as public-good news and commentary was produced by markedbased media in the 20th century, a significant support came from mass media’s monopoly profits.
That model is no longer plausible, and the change is evident. This suggests that how market-based
media fails free speech has both changed and become more apparent.
There is another aspect of the changing media environment worth noting here; namely, the way in
which it might be thought to undermine the internal pluralism that is a hallmark of German public
broadcasting. Miyase Christensen, for example, has suggested that concepts of internal pluralism
‘dissolve when applied to the Internet’:
The sheer volume of material online, coupled with the decentralized and de-territorialized
production, distribution and exhibition nature of the Web, renders moot the traditional
approaches to internal pluralism.86
While undoubtedly true in part, the situation is not unprecedented. Structurally somewhat similar
developments were seen in the 1980s with the development of cable and satellite broadcasting. The
court observed in 1986 that, once programs could be received from other states in Germany or from
84
Joseph Turow, The Daily You: How the New Advertising Industry Is Defining Your Identity and Your Worth
(New Haven: Yale University Press, 2011) 5.
85
Nick Couldry, Why Voice Matters: Culture and Politics After Neoliberalism (London: Sage 2010) 12.
86
Miyase Christensen, ‘Visions of Media Pluralism and Freedom of Expression in EU Information Society
Policies’ in Beata Klimkiewicz (ed), Media Freedom and Pluralism: Media Policy Challenges in the Enlarged
Europe (2010) 27, 37.
13
elsewhere in Europe, a state legislature cannot entirely ensure ‘balanced plurality’.87 That is all the
more true with globally networked, multi-platform digital media environments. But a legislature can
still act in support of the goal. Indeed, the contemporary media environment would appear to
underline the need for adequate funding and an evolving approach to the scope of public
broadcasting. The need for public speech that occurs outside market and outside political pressures
is not obviated by the development of digital networked communications.
Conclusion
Various assumptions can be seen to underlie negative approaches to free speech. These include the
idea that, where government avoids ‘direct’ action, there is equality in terms of public debate, there
is rationality in debate, or there is avoidance of a greater harm that would be caused by government
action. The assumptions appear unconvincing or doubtful in light of wider research. Public speech is
shaped by the environment in which it occurs, including, for example, the degree of media
commercialisation. There is no avoiding such influences, nor avoiding the role of law as one element
shaping environments for speech. Market-driven approaches ‘merely assign the regulation of
communication to nonstate powers.’88 This ‘secure[s] a particular configuration of freedom of
expression’ that is likely to ‘leave some unable to find their voices and does not guarantee the
expression of diverse views.’89 At least some types of government action—the support of public
media—appear to promote one of the classic rationales for free speech.
In terms of considering arguments in support of positive free speech, the German example suggests
some useful ideas and techniques that could have wider relevance.
The German constitutional jurisprudence, and the institutions it has spawned, teach us that
it is possible to create independent, neutral, self-executing, and ‘diversity-generating’
structures to guard against public or private censorship, and that these structures have a
constitutional dimension.90
Little in the cases appears to be limited to the German context. The ‘path dependency’ of media
systems that is seen in some research would not be a valid reason, in itself, for quarantining German
free speech law.91
The case law suggests that free speech’s importance means the state has an obligation to pursue
conditions under which free speech can be realised.92 This has led to the development of a public
and commercial ‘dual’ broadcasting system, in which public provision is primary and is the necessary
precondition to the commercial. The public service must be comprehensive, universally available and
87
73 BVerfGE 118 (1986) (Fourth Broadcasting decision).
Onora O’Neill, ‘Practices of Toleration’ in Lichtenberg (ed), above n 17, 155, 178.
89
Ibid.
90
Witteman, ‘Information Freedom’, above n 23, 246 (emphasis in original).
91
On path dependency, see eg Peter J Humphreys, Media and Media Policy in Germany: The Press and
Broadcasting since 1945 (Oxford: Berg, 2nd ed 1994); Gibbons and Humphreys, above n 24. Other research has
tended to see types of convergence occurring across different national systems of media regulation; see eg
Daniel C Hallin and Paolo Mancini, Comparing Media Systems: Three Models of Media and Politics (Cambridge:
Cambridge University Press 2004).
92
In the German instance the importance of free speech is primarily related to its political roles. While the
political importance of free speech is probably the easiest basis on which to set out the analysis, it should not
be thought to be limited to that basis for free speech; see eg Kenyon, above n 11.
88
14
diverse. And in order to have these qualities, it must be adequately funded through a relatively
depoliticised process so that it has independence from market and political pressures.
This understanding also means that courts will have to act in support of positive free speech. ‘Free
and independent media can be the result of state action’93 and free speech under the Basic Law
requires such action. Even with strongly enunciated positive obligations set out by a constitutional
court, political battles will likely emerge that mean legislatures and executives do not properly
protect free speech. For example, after the Federal Constitutional Court’s 1994 decision on funding
public broadcasting, the issue of funding did not then become politically straightforward. Meier sets
out how challenges to public broadcasters emerged at subsequent funding determinations,94 with
the Länder in 2004 setting out ‘a genuine political rationale’ for limiting the next licence fee increase
based on current economic conditions (in general and in relation to broadcasting), other reductions
in public spending, and the consequent hardships faced by the public.95 This rationale was not in the
form stipulated by the court in 1994. The public broadcasters returned to the court after the
Länders’ ‘stunning’ actions, which were described as unconstitutional even before the court
decision.96 The example suggests that political self-interest and economically-driven lobbying by
commercial media may well prevent politicians achieving the independence for public broadcasting
that is required by free speech. Free speech is not merely a matter of industry dynamics or public
policy. It requires courts to set certain positive requirements, which may include procedural
protections like the multi-stage ‘professional’ process set out by the court in relation to funding.
Courts may not be entirely disinterested bodies with regard to the media, but they are at least
bodies with different media interests than the other major institutional actors. As Eric Barendt noted
long ago, ‘unlike party politicians’ judges ‘have no occasion to shape the basic rules of broadcasting
law to suit their own ends’.97 That very separation of courts from party politics underlines the need
for courts to play a role in protecting free speech, just as they act to protect other constitutional
values. That duty on courts is well recognised with regard to negative free speech; it is equally
applicable to the positive aspects of free speech. This is not to suggest that the court has taken over
the process—the court remains ‘far from being the dominant force in the constitutional system’.98
This understanding of free speech also makes it clear that free speech is not simply present or
absent in any binary fashion. Free speech, as constitutionally required for democratic ends, involves
degrees of presence or absence; free speech is only ever realised in part. For example, the court has
observed: ‘When “balanced plurality” exists or can be expected is something that cannot be defined
exactly, since unambiguous criteria are lacking; it is a target value that can only ever be reached
93
Sebastian Müller and Christoph Gusy, Case Study Report: Does Media Policy Promote Media Freedom and
Independence? The Case of Germany (2011) 21, available via http://www.mediadem.eliamep.gr/findings.
94
Henk Erik Meier, ‘Independent Regulatory Bodies and Impossible Jobs: The Failure of German Public Service
Broadcasting Regulation’ (2008) 86 Public Administration 133, 138-139.
95
Henk Erik Meier, ‘“For a Few Cents Less”? Nested Games in German Broadcasting Regulation’ (2006) 15
German Politics 166, 185.
96
Ibid, 166.
97
Eric Barendt, ‘The Influence of the German and Italian Constitutional Courts on Their National Broadcasting
Systems’ [1991] Public Law 93, 115.
98
Heun, above n 24, 230. Probable weaknesses in judicial action are also notable, see eg Joel Bakan, Just
Words: Constitutional Rights and Social Rights (Toronto: University of Toronto Press, 1997). The German
example, however, illustrates how the political process has at least equally clear (if not clearer) failings.
15
approximately.’99 Even so, the court is clear that it ‘would be remote from all reality’ to think that
internal pluralism does not ‘produce substantively different contributions to information and to
formation of opinion’.100 Free speech’s partial qualities are perhaps more apparent for positive free
speech, although the court’s explicit recognition of what could be called ‘partial’ free speech reflects
the situation for free speech as a whole.
While the German example is instructive, there are ways in which it does meet the goals that appear
to be required in positive free speech. I note two aspects here, concerning the range of media
involved and idea of diversity.
First, in one obvious limitation the Federal Constitutional Court decisions address only public
broadcasting. Historically, the reasons for a distinct treatment of broadcasting from print media
were often based on technical questions, such as limited broadcasting spectrum, but the differential
treatment raised controversy in other jurisdictions even then.101 As noted above, in the German
context the court has moved from relying on spectrum scarcity and very high production costs to
justify the constitutional requirement for public broadcasting. More recently it has emphasised that
the effects of financing commercial broadcasting through advertising means it is necessarily unable
to meet the constitutional mandate for individual and public opinion formation. It is not clear why
this reasoning would not apply to other media. Thus, a variety of media financing models could be
required across different forms of media, not just a dual model within broadcasting. The arguments
for positive free speech apply to public media, not public broadcasting.
Second, the court has pursued a model of internal pluralism through broadcasting councils. This is an
unsurprising approach in relation to substantial public broadcasters—entities which are required to
provide the comprehensive service to the entire population required by Article 5’s broadcasting
freedom. But to suggest that the dual system, in itself, meets the constitutional aims seems less
clear. It is a model that deals with only two styles of organisation, public and commercial, and does
so only in relation to one from of media, broadcasting. The logic of the analysis would appear to go
further. I note here just one other example of what a diverse media environment would contain,
taken from the existing literature in media studies and law.102 James Curran has listed five required
sectors for democratic media: a ‘core’ public media sector; a ‘civic’ sector related to various interest
and identity groups; a ‘professional’ sector, controlled by media professionals themselves and not
subject to market financing; a ‘private enterprise’ sector (market financed but preferably with
editorial control separate from ownership); and a ‘social market’ sector to ‘incubate new forms of
competition, rooted in social forces underrepresented in the market, as a way of extending real
99
Ibid.
74 BVerfGE 297 (1987) (Fifth Broadcasting case).
101
See eg debates on different approaches to US broadcasting and print media illustrated by Red Lion
Broadcasting v FCC 395 US 367 (1969) and Miami Herald v Tornillo 418 US 241 (1974); and eg Lee C Bollinger,
‘Freedom of the Press and Public Access: Toward a Theory of Partial Regulation’ (1976) 75 Michigan Law
Review 1.
102
See eg C Edwin Baker, Media, Markets, and Democracy (Cambridge: Cambridge University Press, 2002) 18990, quoting from James Curran, ‘Mass Media and Democracy Revisited’ in James Curran and Michael Gurevitch
(eds), Mass Media and Society (New York: St Martin’s Press, 2nd ed 1996) 81, 112. Baker continued his support
for the ideas: C Edwin Baker, Media Concentration and Democracy: Why Ownership Matters (Cambridge:
Cambridge University Press, 2007) 198. For more on the model see James Curran, Media and Power (London:
Routledge, 2002) 240-46.
100
16
consumer choice and power.’103 Kari Karppinen has described the model as ‘[o]ne of the most
prominent outlines for a media system’ with strengths in postulating ‘different operating logics’ for
different media and asserting that ‘a democratic media system should create spaces for the
communication of opposed viewpoints and a common space for their mediation’.104
One particularly notable aspect in comparison with the German broadcasting decisions is the idea of
having both ‘universal’ and ‘sectional’ media—that is, wider inclusive media and narrower partisan
media—both of which are separate from market-based media. The internal pluralism sought by the
German constitutional court—which, of course, will only be imperfectly achieved in any event—
resonates with the idea of inclusive, population-wide media. One might expect that media to tend
towards mainstream views in its content. The approach, however, makes little sense if diversity is
understood also to involve a wider range of views (those of each ‘socially relevant’ group, for
example) pursued in a ‘pure’ form through sectional media. The invisibility of such issues from the
German cases may relate to aspects of national political culture, parties involved in litigation, or a
general conservatism within legal systems. It may also be an example of what Donald Kommers
noted nearly two decades ago as criticism raised by some commentators against the court’s role:
In the eyes of these critics, the court serves as a brake on social change and is the main force
responsible for the imposition of a constitutional ideology that sanctifies consolidation and
stability, defends the status quo, and promotes consensus politics.105
Consensus politics and diversity in public speech may not be the easiest partnership. That suggests a
further question is how wider ‘external’ pluralism could be achieved through different institutional
forms of public media; forms that could exist alongside the dual model that has been set out so
consistently by the German Federal Constitutional Court.
103
See Curran, ibid.
Kari Karppinen, Rethinking Media Pluralism (New York: Fordham University Press, 2013) 79 (emphasis
added).
105
Kommers, above n 20, 56.
104
17