Freedom of the Press and General Theory of Freedom of Speech

Abstract

Freedom of the press is a special principle vis-à-vis the general principle of freedom of speech; ‘special’ not in a weak sense, as a concretization of the general principle to a special category of issues, but ‘special’ in a strong sense, as governed by particular principles and criteria which do not apply in the same way to the general principle of freedom of speech. The ‘special’ character of freedom of the press is displayed by a special range of its right-holders (though the blurring of the distinction between news makers and news consumers renders this criterion increasingly fragile and unreliable), by the special subject-matter of rights triggered by freedom of the press (though special privileges for journalists may be questioned as unfair and self-serving), and most importantly, by special rationales for freedom of the press: not all justifications for general freedom of speech apply, or apply without important revisions, to freedom of the press. Deriving all rules regarding the contours and the strength of freedom of the press from the requirements of democracy may seem questionable but is ultimately persuasive. In particular, there is nothing antithetical to political democracy in allowing non-political speech to be regulated by the majority of the day. It will just not come under the control of the special principle of freedom of the press.

Keywords: press, media law, freedom of the press, freedom of speech, freedom of expression

JEL Classification: K10, K30