Freedom and Equality in a Liberal Democratic State by Jasper Doomen - HTML preview

Chapter 11

1. Cf. E. BURKE, Reflections on the Revolution in France, p. 240: “Circumstances […] give in reality to every political principle its distinguishing color and discriminating effect.”
2. Cf. E. BURKE, Reflections on the Revolution in France, p. 311: “The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori”, I would not assent to the following statement, though: “Nothing universal can be rationally affirmed on any moral or any political subject”, E. BURKE, An Appeal from the New to the Old Whigs, p. 80. Such a radical observation, at least with regard to politics, is incompatible with the basis of my inquiry, whose a priori nature is undeniable. For the same reason, MacIntyre’s point of view differs significantly from mine: “There is no standing ground, no place for enquiry, no way to engage in the practices of advancing, evaluating, accepting, and rejecting reasoned argument apart from that which is provided by some particular tradition or other”, Whose Justice? Which Rationality?, p. 350; cf. After Virtue, pp. 126, 127.
3. One may restrict this to physically harmful acts.
4. National Socialist Party of America v. Village of Skokie (432 U.S. 43, 1977; 69 Ill. 2d 605, 373 N.E. 2d 21, 1978).
5. Cf. Chaplinsky v. New Hampshire (315 U.S. 568, 1942).
6. 51 Ill. App. 3d 279, 366 N.E. 347, 1977.
7. 51 Ill. App. 3d 279, 366 N.E. 347, 1977.
8. 69 Ill. 2d 605, 373 N.E. 2d 21, 1978.
9. J. FEINBERG, Offense to Others, p. 87.
10. J. FEINBERG, Offense to Others, p. 88.
11. M. ROSENFELD, “A Pluralist Theory of Political Rights in Times of Stress”, p. 45. Cf. U. BATTIS and K. GRIGOLEIT, “Rechtsextremistische Demonstrationen und öffentliche Ordnung – Roma locuta?”, p. 3462: “Die Nazis durften durch Skokie paradieren. Deutsche Gerichte hätten den Fall anders entschieden.” (“The Nazis were allowed to parade through Skokie. German courts would have judged the case otherwise.”)
12. Schenck v. United States (249 U.S. 47, 1919): “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to  prevent.”  In  Brandenburg v. Ohio (395 U.S. 444, 1969), the phrase ‘imminent lawless action’ was substituted for ‘clear and present danger’: “[…] the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
13. The fact that there is a danger means that the actual harm has not manifested itself, meaning that some degree of uncertainty will remain until it does. There is more justification to intervene in the case of ‘probably’ than in the case of ‘possible consequences’ just mentioned, but even here, judges have a task to assess the circumstances of the case at hand.
14. Cf. Th. SCANLON, “Freedom of Expression and Categories of Expression”, p. 534: “[…] where political issues are involved governments are notoriously partisan and unreliable. Therefore, giving government the authority to make policy by balancing interests in such cases presents a serious threat to particularly important participant and audience interests.”
15. The judiciary must in that case be careful not to nullify its role, a danger that looms in judgments such as the following: “As in the case of ‘morals’ it is not possible to discern throughout Europe a uniform conception of the significance of religion in society […]; even within a single country such conceptions may vary. For that reason it is not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others. A certain margin of appreciation is therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference”, Otto-Preminger-Institut v. Austria (ECtHR, Application no. 13470/87, 1994). On the basis of such statements, courts are liable to negate the very purpose of their existence. (For completeness, I add that the Court does complement this judgment by stating that the authorities’ margin of appreciation is not unlimited, thus mitigating the problematic nature of its consideration.)
16. A. ALTMAN, “Freedom of Expression and Human Rights Law: The Case of Holocaust Denial”, p. 42.
17. If this is not concretized, although the adverb ‘reasonably’ is formally in place, this will add to the judge’s task, since he will have to be the one to concretize it, lacking guidelines other than those he can find in precedent cases (the convincingness of which may in some instances be called into question in light of the present observations – there is, after all, no infinite regress into previous precedents).