Freedom of Expression and Its Competitors
31 Civil Justice Quarterly, Issue 4, p. 466 (2012)
10 Pages Posted: 12 Jan 2013 Last revised: 22 Dec 2014
Date Written: October 1, 2012
The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article examines the growing differences between the ways the courts in the United States and the United Kingdom have handled these conflicts. In the United Kingdom there is a growing body of law requiring speech that is challenged for invading some other recognized basic right to survive a judicial determination that the expression in question concerns some matter of legitimate public interest. For the moment the United States has not taken that route but, as the article points out, there are some hints in its more recent decisions on freedom of expression that the United States Supreme Court might modify its expansive view of the ambit of freedom of expression to permit some expression to be successfully challenged on the ground that it does not concern a matter of “public concern” — a development I would not welcome even if it narrowed the differences between the United States and Europe.
Keywords: Comparative law, Defamation, Freedom of expression, Mental distress, private and family life, privacy
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