Freedom of communication in the U.S. and Europe

Abstract

This paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the U.S. (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consistent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small detail. In this sense, the shift of the burden of proof in defamation cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires «breathing room»; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consideration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of March 16th, the Spanish Constitutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of December 16th, the Constitutional Court has suggested the preferential position of freedom of expression. However, the incorporation of the Sullivan doctrine into the Spanish system occurred through STC 6/1988 of January 21st, almost ten years after the passage of the Constitution into law.