DIND - Clase IX - Modulo 1 (2018)

Freedom of Expression and Discriminatory Speech

Introduction to the Class

• The class focuses on freedom of expression and discriminatory speech within the framework of equality and non-discrimination.

• The aim is to reflect on the legal approach needed for addressing discriminatory discourses, especially in light of freedom of expression traditions.

Legal Framework and Freedom of Expression

• There is a tension between protecting freedom of expression for harmful ideologies (e.g., genocidal, xenophobic) and upholding equality principles.

• The discussion will be divided into two modules:

• General analysis of freedom of expression.

• Specific responses communities can provide against discriminatory speech.

Importance of Freedom of Expression

• Historically viewed as an individual right for personal self-realization, its significance has evolved to encompass democratic engagement.

• Freedom of expression is now seen as a precondition for effective democratic practice, emphasizing public discourse over mere voting processes.

Democratic Engagement Requirements

• Effective democracy requires robust public debate where all affected parties participate autonomously, necessitating state action to ensure material equality.

• Both formal and material equality are essential; participants must have reasonable chances for success in public debates.

Normative Reception Changes

• Historical constitutional protections were modest, focusing on individual rights without broader societal implications. In contrast, international frameworks like the American Convention on Human Rights offer more comprehensive protections.

• Article 13 emphasizes collective rights to seek, receive, and disseminate information across various mediums—highlighting a shift from individualistic to collective understanding in free speech contexts.

Role of the State in Free Speech

• The state's role has transitioned from being an adversary to an essential ally in promoting free expression by ensuring diverse voices are heard while moderating dominant narratives when necessary.

Understanding the Right to Seek and Share Information

The Role of Article 19 in National Constitution

• The right to seek, receive, and disseminate information is protected, even if it may cause harm to others. This interpretation requires a systematic reading of the national constitution's Article 19.

• Article 19 protects private actions as long as they do not offend public order or morality or harm third parties. This provision allows for various interpretations and ongoing debates within jurisprudence.

Liberal Interpretation by the Supreme Court

• Following the Arriola ruling, the Supreme Court adopted a more liberal interpretation of Article 19, emphasizing personal autonomy and expanding its scope.

• The court suggests that concepts like public moral order and harm to others should be understood as coextensive, referring to similar types of conduct.

Principles of Autonomy in Liberalism

• Liberalism posits that every individual should be treated with equal respect and consideration based on their legal status as persons capable of freely choosing their life plans.

• It rejects perfectionist and paternalistic views that impose certain virtuous behaviors on individuals. Each person must have the freedom to choose their own path without external imposition.

Community Regulation and State Interference

• The liberal perspective argues against imposing behaviors deemed more virtuous; instead, individuals are seen as best judges of their interests despite varying susceptibility to external influences.

• The state can only regulate interactions that cause harm to others, focusing on mutual interference within personal freedoms rather than moral judgments about individual choices.

Protection Against Harmful Speech

• Conduct related to moral order and harm must be viewed expansively; non-harmful discourse should remain valid without state regulation.

• Freedom of expression is framed as protecting only those discourses causing actual harm. There are limits regarding discriminatory speech which will be explored further in subsequent discussions.

Institutional Practices Supporting Free Expression

• Current institutional practices reflect a commitment to free expression while acknowledging potential harms caused by certain discourses.

• A new protective circle is proposed for public discourse concerning community functioning, indicating a willingness to prioritize democratic engagement over other legal goods when necessary.

Protecting Historically Disadvantaged Groups

• There exists an additional layer of protection aimed at historically marginalized groups in public debate.

The Role of the State in Regulating Expression and Democracy

Balancing State Regulation and Democratic Functioning

• The state must exercise caution when imposing sanctions, as potential damage to democracy can arise from its actions. Sometimes, sacrifices of other legal goods are necessary to enhance the democratic potential of the system.

Principles of Freedom of Expression

• The state should maintain neutrality regarding expression content, following liberal principles. Harmful acts expressed must be regulated based on their consequences rather than their content.

• While content regulation may be unavoidable in certain cases, it requires utmost care. There is a presumption against state regulation of content, especially when it pertains to viewpoints.

Ensuring Neutrality in Democratic Debate