The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World

By Barend Van Niekerk | Go to book overview

4
Informal Restrictions and Indirect Sanctions on Free Speech in the Legal Domain

The freedom of speech -- which includes the freedom to print -- is a facet of civilization which always presents two well-known inherent traits. The one consists of the constant desire by some to abuse it. The other is the inclination of those who want to protect it to repress more than is necessary. The latter is also fraught with danger. It is based on intolerance and is a symptom of the primitive urge in mankind to prohibit that with which one does not agree. When a court of law is called upon to decide whether liberty should be repressed . . . it should be anxious to steer a course as close to the preservation of liberty as possible. It should do so because freedom of speech is a hard-won and precious asset, yet easily lost.

Appeal Judge Rumpff dissenting in the censorship case Heinemann in South Africa1


INTRODUCTION

If freedom of speech generally has been a "hard-won and precious asset," it has even been more so in relation to freedom of speech in the legal domain, where in most societies that freedom is still far from completely won. It is so little understood in such wide and respectable circles that knowledge about its virtual nonexistence or attenuation is very often totally lacking, and it is in this lack of knowledge about the understanding of legal free speech that we find one of the most basic reasons why this freedom is so easily lost, often before it has ever flowered at all. The struggle in this field to overcome "the primitive urge of mankind to prohibit that with which [he] does not agree" has as often as not been directed as much at the informal restrictions and at social inertia than at overt official attempts to stifle verbal dissent in the legal domain. Not surprisingly, the memorials of this struggle are not as visible and as easily documentable as is the case with legal restrictions, and it is therefore also much less susceptible to analysis than is the case with the struggle against formal rules, studded as the latter usually are with judgments, convictions, rhetoric, and even high drama.

At various junctures, reference was made to the concept and effects of informal restrictions on legal free speech, and in what follows an attempt will be made to analyze this concept more clearly on the basis of examples (or suspicions) that are documentable from such sources in a number of mostly European countries as were available. Because of my personal familiarity with

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