MOKGORO J
[25]
But my freedom of expression is impoverished indeed if it does not embrace also my right
to receive, hold and consume expressions transmitted by others. Firstly, my right to express
myself is severely impaired if others’ rights to hear my speech are not protected. And secondly,
my own right to freedom of expression includes as a necessary corollary the right to be exposed
to inputs from others that will inform, condition and ultimately shape my own expression. Thus,
a law which deprives willing persons of the right to be exposed to the expression of others gravely
offends constitutionally protected freedoms both of the speaker and of the would-be recipients. 35
[26]
It is useful to relate that reasoning to the foundational purposes for the existence of the right
to freedom of expression. The most commonly cited rationale is that the search for truth is best
facilitated in a free “marketplace of ideas.” That obviously presupposes that both the supply and
the demand side of the market will be unfettered.36
But of more relevance here than this
“marketplace” conception of the role of free speech37 is the consideration that freedom of speech
35
It is worth noting that a further dimension of the corollary relationship between the right to transmit and the right
to receive information was recognised by the Technical Committee on Fundamental Rights During the Transition,
which appended as an Explanatory Note to its draft of the free expression clause the comment that “the Committee
understands that freedom of speech and expression includes the right to gather information preparatory to its
expression.” Fourth Progress Report, June 3, 1993, para 2.1. See Chaskalson, et. al, Constitutional Law of
South Africa (1996) § 20.1(b) (Technical Committee’s note “suggests that although access to information held
by the state is separately enshrined in s 23, the right to receive information is also an integral part of the right of
freedom of expression.”)
36
This rationale was eloquently articulated in Justice Holmes’ famous dissent in Abrams v U.S., 250 U.S. 616, 630
(1919): “[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free
trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of
the market . . . [w]e should be eternally vigilant against attempts to check the expression of opinion that we loathe
and believe to be fraught with death . . .”.
37
It is questionable whether the truth-seeking rationale for freedom of expression has application where the
expression at issue is pornographic: “[M]ost pornography makes no contribution at all to political or intellectual
debate: it is preposterous to think that we are more likely to reach truth about anything at all because pornographic
videos are available.” Ronald Dworkin, Women and Pornography, New York Review of Books, Oct. 21, 1993.
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