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	<title>Comments on: Content-based Speech Restrictions in the European Court</title>
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	<description>Blog of the European Journal of International Law</description>
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		<title>By: Anton’s Weekly Digest of International Law, Vol. 3, No. 21 (24 July 2012) &#124; Anton&#039;s Weekly Digest of International Law</title>
		<link>http://www.ejiltalk.org/content-based-speech-restrictions-in-the-european-court/comment-page-1/#comment-23813</link>
		<dc:creator>Anton’s Weekly Digest of International Law, Vol. 3, No. 21 (24 July 2012) &#124; Anton&#039;s Weekly Digest of International Law</dc:creator>
		<pubDate>Tue, 24 Jul 2012 01:36:06 +0000</pubDate>
		<guid isPermaLink="false">http://www.ejiltalk.org/?p=5211#comment-23813</guid>
		<description><![CDATA[[...] Content-based Speech Restrictions in the European Court &#8211; from EJIL: Talk! by Marko Milanovic [...]]]></description>
		<content:encoded><![CDATA[<p>[...] Content-based Speech Restrictions in the European Court &#8211; from EJIL: Talk! by Marko Milanovic [...]</p>
]]></content:encoded>
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		<title>By: Jens Iverson</title>
		<link>http://www.ejiltalk.org/content-based-speech-restrictions-in-the-european-court/comment-page-1/#comment-23487</link>
		<dc:creator>Jens Iverson</dc:creator>
		<pubDate>Wed, 18 Jul 2012 09:32:45 +0000</pubDate>
		<guid isPermaLink="false">http://www.ejiltalk.org/?p=5211#comment-23487</guid>
		<description><![CDATA[Here&#039;s a nice earlier post on the case:
http://strasbourgobservers.com/2011/03/10/banning-speech-in-the-public-space/

And some excerpts from the dissents:

p. 32 (JOINT DISSENTING OPINION OF JUDGES TULKENS, SAJÓ, LAZAROVA TRAJKOVSKA, BIANKU, POWER-FORDE, VUČINIĆ AND YUDKIVSKA)
Even supposing that “the link to the Clonaid website contribute[d] to the promotion of an unlawful activity”, as the Federal Court found, the Swiss Government did not allege that such “promotion” constituted per se an unlawful act punishable under domestic law. Whilst the expression of an opinion in favour of human cloning might shock or offend the majority of people, it is “precisely in the case of ideas that offend, shock and challenge the established order that freedom of expression is the most precious” (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009).

p. 34
10. Moreover, the Court has always observed in its case-law that it is not its role to cast judgment on the manner in which individuals choose to express themselves, because Article 10 of the Convention also protects the form in which ideas are conveyed (see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III). Applicants are free to use the means of expression of their choosing and it is not for the Court to scrutinise them or suggest other forms or arrangements. Ultimately that would be tantamount to imposing on applicants the burden of proving the necessity of the means of communication used and therefore of reversing the logic of Article 10.

p. 36
As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative.

p. 39 (JOINT DISSENTING OPINION OF JUDGES SAJÓ, LAZAROVA TRAJKOVSKA AND VUČINIĆ)
In the Swiss system applicable here, the administration of billboards was under private management and the display of the poster was subject to prior authorisation.
As the Court has previously found, “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216).

p. 44
One should not forget the societal effects on minority positions of such a police ban. The applicant organisation is undeniably in a minority position precisely because of its unpopular views. While it has continued to have opportunities to express its views (though in the absence of the posters the likelihood of effective communication has been diminished) the ban and its reasons expressed an official legal position on the views of the applicant association, with obvious additional censorial effect. In the context of demonstrations, the Court has recognised that refusals to give authorisation could have had a chilling effect on the applicants (and others participating in the movement and sharing similar convictions).

p. 67-68 (DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE)
Conclusion
The very purpose of Article 10 of the Convention is to preclude the State from assuming the role of watchman for truth and from prescribing what is orthodox in matters of opinion. The State must strictly adhere to the principle of content-neutrality when it decides how to make public space available, refraining from banning a campaign on the pretext that authorisation could imply approval or tolerance of the opinions in question. Such prohibitions are not compatible with the pluralism inherent in democratic societies, where ideas are freely exchanged in public space and truth and error emerge from an unrestricted confrontation of ideas. As John Stuart Mill put it, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”62
In the instant case, having regard to the State’s negative obligation to refrain from interfering with the applicant association’s freedom of expression, the mixed nature of the association’s speech, the legality of the speech, the association’s website and statutory purposes at the material time, the inexistence of any clear and imminent danger resulting from this speech and the contradictory and arbitrary scope of the poster ban, and after examining the decisions given by the competent authorities in the light of the narrow margin of appreciation applicable to the case, I cannot but conclude that the reasons on which the impugned ban was based were not sufficient and that the interference did not correspond to a pressing social need.
62 John Stuart Mill, On Liberty, 1859.]]></description>
		<content:encoded><![CDATA[<p>Here&#8217;s a nice earlier post on the case:<br />
<a target="_blank" href="http://strasbourgobservers.com/2011/03/10/banning-speech-in-the-public-space/"  rel="nofollow">http://strasbourgobservers.com/2011/03/10/banning-speech-in-the-public-space/</a></p>
<p>And some excerpts from the dissents:</p>
<p>p. 32 (JOINT DISSENTING OPINION OF JUDGES TULKENS, SAJÓ, LAZAROVA TRAJKOVSKA, BIANKU, POWER-FORDE, VUČINIĆ AND YUDKIVSKA)<br />
Even supposing that “the link to the Clonaid website contribute[d] to the promotion of an unlawful activity”, as the Federal Court found, the Swiss Government did not allege that such “promotion” constituted per se an unlawful act punishable under domestic law. Whilst the expression of an opinion in favour of human cloning might shock or offend the majority of people, it is “precisely in the case of ideas that offend, shock and challenge the established order that freedom of expression is the most precious” (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009).</p>
<p>p. 34<br />
10. Moreover, the Court has always observed in its case-law that it is not its role to cast judgment on the manner in which individuals choose to express themselves, because Article 10 of the Convention also protects the form in which ideas are conveyed (see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III). Applicants are free to use the means of expression of their choosing and it is not for the Court to scrutinise them or suggest other forms or arrangements. Ultimately that would be tantamount to imposing on applicants the burden of proving the necessity of the means of communication used and therefore of reversing the logic of Article 10.</p>
<p>p. 36<br />
As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative.</p>
<p>p. 39 (JOINT DISSENTING OPINION OF JUDGES SAJÓ, LAZAROVA TRAJKOVSKA AND VUČINIĆ)<br />
In the Swiss system applicable here, the administration of billboards was under private management and the display of the poster was subject to prior authorisation.<br />
As the Court has previously found, “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216).</p>
<p>p. 44<br />
One should not forget the societal effects on minority positions of such a police ban. The applicant organisation is undeniably in a minority position precisely because of its unpopular views. While it has continued to have opportunities to express its views (though in the absence of the posters the likelihood of effective communication has been diminished) the ban and its reasons expressed an official legal position on the views of the applicant association, with obvious additional censorial effect. In the context of demonstrations, the Court has recognised that refusals to give authorisation could have had a chilling effect on the applicants (and others participating in the movement and sharing similar convictions).</p>
<p>p. 67-68 (DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE)<br />
Conclusion<br />
The very purpose of Article 10 of the Convention is to preclude the State from assuming the role of watchman for truth and from prescribing what is orthodox in matters of opinion. The State must strictly adhere to the principle of content-neutrality when it decides how to make public space available, refraining from banning a campaign on the pretext that authorisation could imply approval or tolerance of the opinions in question. Such prohibitions are not compatible with the pluralism inherent in democratic societies, where ideas are freely exchanged in public space and truth and error emerge from an unrestricted confrontation of ideas. As John Stuart Mill put it, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of<br />
exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”62<br />
In the instant case, having regard to the State’s negative obligation to refrain from interfering with the applicant association’s freedom of expression, the mixed nature of the association’s speech, the legality of the speech, the association’s website and statutory purposes at the material time, the inexistence of any clear and imminent danger resulting from this speech and the contradictory and arbitrary scope of the poster ban, and after examining the decisions given by the competent authorities in the light of the narrow margin of appreciation applicable to the case, I cannot but conclude that the reasons on which the impugned ban was based were not sufficient and that the interference did not correspond to a pressing social need.<br />
62 John Stuart Mill, On Liberty, 1859.</p>
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		<title>By: H</title>
		<link>http://www.ejiltalk.org/content-based-speech-restrictions-in-the-european-court/comment-page-1/#comment-23470</link>
		<dc:creator>H</dc:creator>
		<pubDate>Wed, 18 Jul 2012 03:20:19 +0000</pubDate>
		<guid isPermaLink="false">http://www.ejiltalk.org/?p=5211#comment-23470</guid>
		<description><![CDATA[A lot of this doesn&#039;t make sense to me:

1)The idea of a geniocracy is absolutely political.  I don&#039;t see how it could be construed otherwise.  It is a statement about who national leaders should be.

2) You mentioned that they had disavowed the child sexualization.  Is there any standard on how long it takes for a disavowal (explicit and/or implicit) to &quot;come into effect&quot; as it were?  I wonder if we can get this from some of the cases about banning political parties, rallies, etc...

3) I wonder to what degree they were suggesting this.  Were they suggesting changing the age of consent from 18 to 16 or from 18 to 8.  (These are just examples, I don&#039;t know swiss law at all).  Depending on how bad it is, and how long they have disavowed this for, I might consider this sufficient to allow a banning.  But if its a slight change in the age of consent, I may not agree but that doesn&#039;t mean it should be banned from public discourse.

4) Nonetheless, even with respect to child sexualization, I don&#039;t see how this could possibly be closer to commercial speech than political speech.  If this is to be the fulcrum of the decision, I&#039;d much rather have them say that this kind of speech is highly protected, but in this instance what they are suggesting qualifies under that high standard.  At least in this way, the group also gets the moral condemnation (again, subject to my caveats in point 3 above).  Not that I&#039;m saying this is political speech (although you can make an argument that it is) but it doesn&#039;t seem at all like commercials speech.  Is there a reason the court would want to avoid this?

In the end - is this just a completely political action by the court i.e. the court hiding behind the margin of appreciation or am I missing something else here?]]></description>
		<content:encoded><![CDATA[<p>A lot of this doesn&#8217;t make sense to me:</p>
<p>1)The idea of a geniocracy is absolutely political.  I don&#8217;t see how it could be construed otherwise.  It is a statement about who national leaders should be.</p>
<p>2) You mentioned that they had disavowed the child sexualization.  Is there any standard on how long it takes for a disavowal (explicit and/or implicit) to &#8220;come into effect&#8221; as it were?  I wonder if we can get this from some of the cases about banning political parties, rallies, etc&#8230;</p>
<p>3) I wonder to what degree they were suggesting this.  Were they suggesting changing the age of consent from 18 to 16 or from 18 to 8.  (These are just examples, I don&#8217;t know swiss law at all).  Depending on how bad it is, and how long they have disavowed this for, I might consider this sufficient to allow a banning.  But if its a slight change in the age of consent, I may not agree but that doesn&#8217;t mean it should be banned from public discourse.</p>
<p>4) Nonetheless, even with respect to child sexualization, I don&#8217;t see how this could possibly be closer to commercial speech than political speech.  If this is to be the fulcrum of the decision, I&#8217;d much rather have them say that this kind of speech is highly protected, but in this instance what they are suggesting qualifies under that high standard.  At least in this way, the group also gets the moral condemnation (again, subject to my caveats in point 3 above).  Not that I&#8217;m saying this is political speech (although you can make an argument that it is) but it doesn&#8217;t seem at all like commercials speech.  Is there a reason the court would want to avoid this?</p>
<p>In the end &#8211; is this just a completely political action by the court i.e. the court hiding behind the margin of appreciation or am I missing something else here?</p>
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