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. 14

Sélectionner le paragraphe cible3

Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières