The State of Affairs of Freedom: Implications of Media Free Speech in German

Wednesday, February 25, 2015 - 12:30 to 13:45

Speaker: Andrew Kenyon (University of Melbourne Law School, Professor and Director of the Centre for Media and Communications Law)

Title: The State of Affairs of Freedom: Implications of Media Free Speech in German

Free speech is often seen as a negative legal right in law and political theory—a freedom from government action. But the rationales that are said to underlie free speech go further. They suggest that positive understandings of free speech are also needed: communicative processes involve freedom to communicate as well as freedom from censorship. Although the possibility of positive free speech has long been recognised in the literature, negative approaches to free speech have been developed with more sophistication; think of the extensive, detailed and technical case law under the US First Amendment and its analysis. What positive free speech could entail in terms of formal law has received less attention. Here, I explore the case law of Germany’s Federal Constitutional Court, which for more than 50 years has promoted positive free speech and the state of affairs underlying it. The approach offers a striking illustration of what can be done in law and the court’s reasoning poses a challenge to all legal systems—Canadian and many others—that do not similarly support the state of affairs of free public communication.

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Fasken Martineau Classroom (Room 122)