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How free is free speech? Free speech appears to be a unifying principle, but often the devil is in the details--the actual cases and controversies which challenge us.

Free speech has become a platitude. Like human rights and democracy, we're all in favor of it, but would rather not address the tough calls where core values collide. However, it's those tough cases, like media competition regulation, campaign finance reform, the Mohammed cartoons or Holocaust denial, which define free speech.

The Czech Republic is both remarkable, as a post-communist state which has come a long way in guaranteeing individual free speech, and unremarkable, as now just another country where individual freedoms and liberties are guaranteed, yet stifled. Nonetheless, there are some distinctive and provocative features of the Czech free speech landscape today.


By examining some of the specific issues which define and breathe life into free speech we may better understand its complexity and sharpen our views on the reach of free speech--what do we really mean when we say we are in favor of free speech?

Free Speech Perspectives

There are some well-established approaches to deciding free speech controversies. Which approach best captures your views on free speech?

Absolutists see free speech as an inviolable right which the state may not interfere with (no way, no how); access theorists believe that free speech ensures the public's right to know and every individual's right to disseminate his or her viewpoint; ad hoc balancers consider free speech to be just another right which should be balanced with competing interests on a case by case basis; preferred position balancers maintain that since free speech is essential in preserving other fundamental rights, the burden of proof rests on those seeking to restrict free speech in cases where it is questioned; and, others emphasize that free speech is most importantly a means towards successful self-governance, thus, speech that relates to governance merits absolute protection.

On its face, the Czech Constitution guarantees free speech even more than the First Amendment of the U.S. Constitution which casts free speech not as an affirmative right, but as something the state shall not hinder. Article 17 of the Czech Charter of Fundamental Rights and Freedoms sets forth that for each and every individual: "(1) Freedom of expression and the right to information are guaranteed; (2) Everybody has the right to express freely his or her opinion by word, in writing, in the press, in pictures or in any other form, as well as freely to seek, receive and disseminate ideas and information irrespective of the frontiers of the State; (3) Censorship is not permitted."

Constitutional guarantees oft en just provide a framework for societal aspirations. Free speech laws serve loft y ideals, but the real world is far from ideal. Consider, for instance, the battle between the paparazzi and individual privacy. Thus, free speech law confronts culture and history--including hatred, intolerance, greed and insecurity. The contemporary free speech controversies which follow shed light on the cumbersome reach of free speech.

Media Ownership and the Free Press

As satellites, transmitters and airwaves are publicly financed, should broadcasters serve the public interest? Should the highest bidder have paramount right to broadcast? Is the media different from other profit-driven businesses? Is the Internet different from other media?

Historically, the free press has served as a watchdog in the West--with a proud tradition as muckrakers exposing abuses of power. In the post-communist world the free press is less than 20 years old. Since the media was state-controlled under communism, the closest thing to a free press was underground dissident voices. Today, questions abound concerning the independence of the press, largely related to the economic consolidation of major media ownership by a relatively small number of big corporations. Others point to media's economic pressures and growing dependence on inside players to get the story and generate advertising revenue.

Czech print media is now mostly foreign-owned, and there is little funding for in-depth investigative journalism. Newspaper owners seem more interested in quick profits than public service journalism. Meanwhile, Czech broadcasting media remains heavily state-owned: Czech TV owns and operates Channels 1 and 2, controlling nearly a third of the market; and Czech Radio operates many stations. In late May a free speech controversy arose when Czech Television broadcast an ad by a neo-Nazi political party calling for a "final solution to the Gypsy issue." Although attempts have been made since the fall of communism to turn the former Czechoslovak Television, a communist propaganda tool, into a public service station, these attempts have been quite unsuccessful.

Economic consolidation of major media outlets is a global phenomenon. Regulators in the United States have diluted public interest controls on media holdings, enabling Rupert Murdoch and others to integrate their media holdings so they may own broadcast and print media companies in the same market. This has had a profound influence on culture, as the marketplace of ideas and diversity of voices reaching the public has diminished. Italy, where Silvio Berlusconi has used media and political power to reinforce each other, and other states have seen mergers and acquisitions of broadcasters distort the media. Globalization has had a dialectical influence on free speech--on one hand erasing borders and increasing content; on the other, feeding a monoculture of information and ideas which thereby marginalizes dissenting views.

Commercial Speech and Campaign Finance

Is advertising protected speech? Is money protected free speech? Should limits be placed on the use of wealth to shape public opinion and influence elections?

The relationship between free speech and democracy is complex. While it is axiomatic that free speech is vital to democracy, the expansion of free speech protections to commercial and political advertising, as well as to campaign contributions and spending, has given the wealthy and industry lobbyists legal cover to distort the political process. Efforts at campaign finance reform have run smack into court rulings that restricting campaign expenditures is a denial of free speech.

The U.S. Supreme Court has ruled that it is a violation of the First Amendment to limit the amount one can spend on a campaign. Critics contend that this debases the electoral process because viable candidates must solicit so much money that they are beholden to special interest groups. The result, critics say, is a culture of pay to play politics in which so much money and influence-peddling is involved in elections and lawmaking that ordinary citizens feel disenfranchised and disgusted with the political process, and the ideal of "government of the people, by the people, for the people" seems utopian.

Commercial advertising received free speech protection in the 1970s based on the rationale that ads provide the public with information needed in order to be informed consumers. Thus, only misleading and deceptive ads could be barred--a vague standard, which when applied by pro-business regulators has yielded scant restriction on commercial speech. Controversies have included tobacco marketing practices, Nike's public relations concerning its overseas labor practices, ExxonMobil's expenditures to influence the climate-change debate, and so called "green-washing"--the efforts of auto and energy companies to portray themselves as environmentally friendly. The reach of the so-called commercial speech doctrine has been brought to the fore as corporations have expanded their marketing and lobbying activities to influence public policy.


Can art be restricted? Should offensive speech be protected? The hotly-debated sculpture of Czech artist/provocateur David Cerny, back from Brussels and now on display in Prague, underscores both the value of and challenges to free speech in Europe. Cerny's dishonesty about the authorship of his work detracted attention from its substance. Nonetheless, by provoking thought and stirring debate, Entropa reinforces art's value as expression/free speech.

Offensive speech can prompt people to examine stale and corrosive beliefs. Satire and parody are protected--as when Cerny mocks Bulgarians and others--because free speech needs breathing space, recognition that speech mustn't be needlessly constrained. Any attempt to restrict art because it off ends is subjective--offensive to whom? People may look or not. By looking and considering, we may reflect and progress. However, banning racist speech, for instance, does not stop racist thought, but rather adds to its allure. The best way to rebut bad ideas is more speech, not less. Debate, don't censor.

Democracy requires informed citizens. Society benefits from a robust and vigorous debate encompassing the widest possible spectrum of views on matters of public concern. Prejudice is a matter of public concern; Entropa has societal value. Cerny's shenanigans undercut that value, but not irreparably. Yet the reaction to Entropa shows European self-righteousness. Intolerance to commentary on stereotypes reveals both the existence of prejudice and a desire for denial. Comic speech is funny precisely because it holds some truth. Don't be afraid of Entropa--look, see, listen, reflect, think and speak up.

Hate Speech

Should hateful speech be allowed? When extremist Dutch Parliamentarian Geert Wilders was prosecuted for violating Holland's hate speech law and barred from entering Britain earlier this year free speech lost. In the attempt to silence this marginal figure, his detractors gave him a grand stage as the poster-child of free speech rights to spread his anti-Islam vitriol. Wilders reveled in the spotlight at his press conference at Heathrow airport, and used his 15 minutes of fame to ignite his ambition. His far right Freedom Party had a strong showing in the June European Parliament elections gaining four seats and 17 percent of the Dutch vote. Following the election an excited Wilders said that he and his backers now "have the whole media circus to play."

The Czech government made a similar miscalculation as the Dutch and Brits when they expelled Klansman-turned-U.S. politician David Duke in April. Trying to silence those who off end us is foolish as it only adds fuel to their fire.

Denmark recently followed this un wise approach by announcing that it was canceling a free speech conference to which Wilders had been invited. How ironic and self-defeating. Sweden, Finland, Iceland, Norway and Britain all prohibit hate speech, as distinguished from other states which prohibit incitement of violence or other imminent lawless conduct. Punish acts not thoughts. Recall the wisdom we learned in the schoolyard: "sticks and stones may break my bones but words can never hurt me."

Holocaust Denial

Should ignorant and twisted speech be permitted? The Czech Penal Code subjects any person who denies the Holocaust or Communist genocide to between six months and three years in prison. Germany and Austria also have criminal laws against speech glorifying Nazism and/or denying the Holocaust. Austria recently imprisoned British historian David Irving for Holocaust denial--the ostensible reason given by the Czech government for deporting David Duke.

As the best way to rebut bad ideas is via debate, these laws undermine free speech values. As former U.S. Supreme Court Justice Oliver Wendell Holmes said, if freedom of speech means anything, "it is the principle of free thought--not free thought for those who agree with us, but freedom for the thought we hate." Holocaust denial flies in the face of vast historical evidence. These laws make open debate impossible, denying us the opportunity to expose such beliefs as twisted, ignorant and irresponsible.

Insult Speech

Should insulting speech be allowed? Twelve European states still have antiquated laws on the books which prohibit insulting the state, state institutions, state emblems, and monarchs, as applicable. Thus, when an Austrian journalist called a neo-Nazi sympathizer politician "an idiot" he violated Article 115 of Austria's criminal code. It took the European Court of Human Rights to overturn his conviction and to clear two Le Monde journalists convicted under the relevant French law.

"Insult" is a vague word; therefore such laws have a chilling effect. Since people don't know what's allowed and what's not allowed, they censor protected speech due to fear of prosecution. Further, insult laws curtail political speech, which should receive the highest protection. A report of the World Press Freedom Committee concludes, "[insult laws] are used to stifle political discussion and dissent, editorial comment and criticism, and even news that the government would rather hide from the public."

Muzzle Law

Should journalists be punished if they publish stories using non-public information? Law and policy must afford the public with access to information, including the operations of public institutions. Sunshine laws mandate open transparent government in order to promote accountability and prevent abuses of power. Sunlight is the best disinfectant.

The so-called "muzzle law," the amendment to the Czech Penal Code which took effect 1 April, harms the public's right to information on public affairs. It threatens journalists who report on police matters using information obtained via wiretaps to five years in prison and a five million CZK fine.

Any law that makes people afraid to speak for fear of punishment has a chilling effect and results in self-censorship, the most insidious type of censorship (prior restraints, overt rules of prepublication censorship, are easier to challenge in court than laws setting forth disproportionate penalties as a means of social control). Chilling effects lead reporters and others not to investigate and speak out on an issue or challenge powerful interests. The muzzle law, now being challenged in the Czech Constitutional Court, violates the public's right to know by imposing overbroad restrictions on reporting, shifting culpability from leakers to journalists, and holding out unduly harsh punishment.


Libel and slander law protect people from the communication of unjustified attacks which damage their reputation. Should people involved in politics and other public affairs be treated differently than others under the law of defamation? What about celebrities and other public figures involved in matters unrelated to governance? What is the appropriate remedy for defamatory speech?

The history of attempts to criminalize speech in the Czech Republic is shameful. Czech defamation law chills free speech in two ways. As throughout Europe, it doesn't set a higher bar for politicians and other public figures to prevail in defamation lawsuits (when public figures need only show that a statement is false in order to prevail, people fear speaking out on controversial public issues). And, most disturbingly, it subjects those accused of defaming another to not only civil liability but also criminal prosecution and up to a year in prison. Now that's a big chill. Czech defamation law serves only the interest of the powerful. Such law becomes a sword rather than a shield to protect one's reputation.

In assessing Czech free speech rights, the Helsinki Commission opined that the "use of criminal sanctions to punish defamation chills free speech, is subject to abuse (through the use of state law enforcement agents), and is inconsistent with international norms." Former Prime Minister Milos Zeman tried to have reporters from Respekt, an independent political weekly newspaper published in Prague, sentenced for defamation, and former TV reporter Jana Bobosikova was interrogated by police for asking "the wrong type of questions" in an interview program.

Libel Tourism

Should limits be placed on forum-shopping? British libel law is plaintiff -friendly, making it much easier to win defamation lawsuits. Amongst other advantages, it shift s the burden to those accused of defamation to prove the truth of the disputed statement. So people have flocked to the British courts to file libel lawsuits (forum-shopping allows plaintiff s to bring lawsuits where the substantive law is most favorable to them, not where there is the strongest connection to the dispute)--hence the term libel tourism.

This sword has been used to chill investigative journalism, demand retractions and silence critics. Boutique law firms in Britain specialize in "brand reputation" legal work for rich clients. In one well-publicized case a Saudi banker was awarded large monetary damages against an author who alleged he financed terrorism--while the British libel court ruled on the claim, the case's only contact with Britain was through 23 Internet purchases of the book Funding Evil which were shipped to England. Publishers are now reticent to publish in Britain, but if a single person buys their book in England via Amazon then British courts may still assert jurisdiction over defamation claims against the authors and publishers. In August 2008, the UN Human Rights Committee joined PEN in criticizing British libel law for being so tilted against writers that it discourages speech on important matters of public interest.

Cyberlaw and Copyright

Does unauthorized file-sharing further a public right to access information and ideas? How does this relate to free speech?

Peer-to-peer (P2P) file-sharing has found a rather safe haven in the Czech Republic. In supporting the right of web-users to share online content and information against the exclusive rights copyright holders claim over their works, Czech public policy has furthered the free speech values of affording the public access to information and ideas. Yet the right to know has run smack into the intellectual property regime which preexisted the Internet.

Copyright and free speech both purport to promote societal innovation and progress. Copyright gives creators exclusive control over the use of their work so they may profit and thus have an incentive to create. Once the copyright period expires the work enters the public domain and may be freely utilized by anyone. Critics contend that the duration of copyright protection has been so extended that it in fact inhibits rather than promotes societal progress. Technology has made it far easier to access and utilize copyright protected work, and online file-sharing has become the focal point of this wider debate.

Law on this issue includes Pirate Bay, Grokster, Napster, RIAA v Verizon, and recent French legislation. The 17 April 2009 Pirate Bay verdict in Sweden punished the operators of a popular file-sharing site by sentencing them to prison for operating a commercial website which profited by facilitating P2P copyright violations using bit torrent technology. The sentence was overturned because it was learned after the trial that the presiding judge was a copyright advocate. The Swedish public was so upset by the verdict that they started a Pirate Party whose representatives won seats to the European Parliament in the June elections. Clearly, this is a free speech issue people feel strongly about.

On 10 June, France's highest constitutional court gave the latest setback to the music and film industries efforts to prevent illicit downloads. The Constitutional Council declared unconstitutional the act of Parliament which would have authorized cutting off the Internet connection of alleged digital pirates. This declaration that government authorities have no right to deny a person Internet access unless they obtain court approval is a major setback to the entertainment industry which had praised the French law as a model solution to the problem of illegal file-sharing. It seems that the efforts to stop the use of technology in ways which have become central to culture are ultimately futile.

France's Constitutional Council said the proposed law violated constitutional principles such as the presumption of innocence and freedom of speech. The court declared that free speech "implies today, considering the development of the Internet, and its importance for the participation in democratic life and the expression of ideas and opinions, the online public's freedom to access these communication services." Likewise, the U.S. Supreme Court has said that the Internet merits the greatest free speech protection. And as a practical matter, it is a tall order to regulate web activity since law is local and territorial while the Internet is global and extraterritorial.

Emerging Free Speech Issues

The Internet has raised myriad free speech issues in addition to file-sharing and jurisdiction, including: If everybody is a broadcaster, is anybody listening? Does having more news sources necessarily make us better informed? In the blogosphere everybody has an opinion, but where is the information? Is it just an echo chamber?

The Internet has brought the old press to its knees. The decline of the newspaper industry has put investigative reporting on a starvation budget. Should we endow newspapers like universities, in recognition of their public value? And if newspapers have a valuable free speech role, then we must confront the complexity of the relationship between copyright and free speech. On 9 July 2009, leading European newspaper publishers called on the European Commission to strengthen copyright protections so that they may survive by generating revenue from their online content. EC media and telecommunications commissioner Vivane Reding deemed this necessary for continued "high quality content and the existence of independent journalism."

Regarding access to diverse sources of information, is Google the next Microsoft ? Competition and antitrust regulators apparently think so. Google's search engine dominance has enabled it to handle some 80 percent of all U.S. online searches and to generate more than $22 billion in revenue last year. There is growing concern over predatory business practices by Google impairing the free flow of information. What does its market dominance mean for the use of new technologies to promote free speech? What does it mean for the future of "old media" (including book publishers and radio broadcasters as well as newspapers)? What does it mean for the future of the Internet?

Czech Conundrums and the Road Ahead

How can Czechs be both Bohemian and incurious? Established by youth in 1980, Prague's Lennon Wall stands as a free speech monument. There is much about Czech history and culture which promotes free speech--love of learning, discovery, music, theatre and art. Arguably, Czech P2P promotion is a reflection of such Czech culture and values. And when President Klaus says outrageous things about the EU, global warming, science and economics, he, perhaps ironically, embodies free speech values. Yet how free is speech when political choice is quite limited?

Communism cast a long shadow over the development of the Czech media in the 1990s. While some communist propagandists were forced out, many journalists simply switched sides. With skeletons in their closets, they lacked the courage to produce independent and critical reports. Until 1996, most of the Czech media uncritically supported the right-of-centre government of Vaclav Klaus, and many continue to do so today. The failure of the Czech media and public to investigate ideas and public policy options fosters static politics in which choice is minimal (of course the same can be said of the U.S. two-party system and others). And so, twenty years on, Czechs have guaranteed free speech, but seldom test its depths. Why bother?

Use it or Lose it

Free speech is essential to the marketplace of ideas needed for effective self-governance and societal progress. Former U.S. Supreme Court Justice and free speech advocate Louis Brandeis beseeched us to affirm "that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth . . . in the power of reason as applied through public discussion" rather than "silence coerced by law--the argument of force in its worst form."

We are said to be living in the information era, but perhaps it is an age of disinformation. If it is indeed true that information powers ideas, and knowledge is power, then we must concern ourselves with the question: who controls the flow of information? Power concedes nothing without a demand, and so it rests on our shoulders to use our freedoms in order to maintain them and progress.

Censorship today is a mutable insidious beast. We see it if we look for it. And we get what we deserve.

Suggested Reading

Auletta, Ken. The Highwaymen: Warriors of the Information Superhighway. Harcourt Brace and Co., 1998.

Day, Louis A. Ethics in Media Communications: Cases & Controversies. 5th ed. Wadsworth/Thomson, 2006.

Lessig, Lawrence. Remix. Penguin Press, 2008. And his other work on copyright law, creativity, innovation, corruption, and free speech.

Lewis, Anthony. Freedom for the Thought That We Hate. Basic Books, 2008.

Pember, Don R. Mass Media Law. 2009-10 ed. McGraw-Hill Higher Ed., 2008.

Tribe, Laurence H. The Invisible Constitution (2008); Constitutional Choices (1985); On Reading the Constitution (1991). Harvard University Press.

William A. Cohn is a writer, constitutional law scholar and lecturer. He teaches at the University of New York in Prague and is a frequent contributor to TNP.
COPYRIGHT 2009 Martin Jan Stransky
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Author:Cohn, William A.
Publication:The New Presence: The Prague Journal of Central European Affairs
Geographic Code:4EXCZ
Date:Jun 22, 2009
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