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

By Barend Van Niekerk | Go to book overview

5
Conclusion: The Unending Struggle

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

Justice Learned Hand1

The achievement of free speech in general and legal free speech in particular is never complete, nor should it be. The light beckoning at the end of the tunnel is often a mirage or a firefly briefly lighting the path of those relatively few souls who make legal matters the object of their contemplations and, especially, their outspoken criticism. Sometimes, there is indeed light that will only in very few instances mean the emergence, albeit temporarily, from the tunnel. More often than not, the light signifies no more than a turning or a twist or a light vent in a tunnel, which for the vast majority of societies in the West will seemingly never end in the sunlight of a vital, dynamic, and responsible system of free speech in the legal domain, a system that responds to the needs of a democratic society and also responds to the protection of certain other vital interests of the individual in a humane society.

In most respects, one society has to a significant extent emerged in the sunlight of a system of legal free speech that is responsive to the needs of a free society, especially because of the theory of the law as handed down by its highest court. The same holds true concerning unfettered access to information about legal matters. Moreover, this is a system where individuals and the media have the ability (both legal and societal) and the willingness to speak freely and forthrightly on all matters within the vast structure of the country's just machinery and to obtain information thereof. But even in that country, the United States, the struggle to achieve such a dynamic system has not yet been finally won, although it can certainly be said that the legal framework for the attainment of that goal has been firmly laid. However, even on the legal plane a reentry is still made from time to time into the tunnel of formal restrictions that are impermissible and unjustified in terms of fundamental democratic requirements. Notwithstanding the Nebraska Press Association decision, courts in the United States continue to impose general gagging orders 2 that, although impermissible in terms of Supreme Court guidelines and ineffective as regards the national media, will not fail to impose a chilling penumbra of silence on a local level where, in any event, interest in most trials will mostly begin and end. Moreover, on the level of informal and invisible inhibitions that are built up

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