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Free Speech and Political Exclusion

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Free Speech and Political Exclusion ERIK LUNDEBY Free speech and political exclusion Dissertation submitted for the dr.art. degree University of Oslo Faculty of arts 2000 This pdf-version was generated from the original manuscript. Paging may differ from the printed version. © 2004 Erik Lundeby ACKNOWLEDGEMENTS I would like to thank my supervisor Gunnar Skirbekk, for inspiring and challenging me in the intensive second half of the project period, and for broadening my perspective on political philosophy in general and free speech in particular. My co- supervisor Arne Johan Vetlesen has contributed valuable comments at different stages in the writing-process. I also appreciate the support I had in the initial phase of the project from my previous supervisor Alastair Hannay. My project was financed through a doctoral fellowship from the Faculty of Arts at the University of Oslo and the Ethics Programme of the Norwegian Research Council, for which I am grateful. I have benefited from being able to present drafts on a regular basis in the colloquia of the Ethics Programme, as well as in the seminars of the doctoral programme at the Department of Philosophy in Oslo. Working seminars at the Center for the Study of the Sciences and the Humanities and elsewhere at the University of Bergen were particularly important in developing the notion of a Mutual Recognition Restriction. Among those who took part in these seminars, I would like to mention, apart from Skirbekk, Anders Molander and Iver Ørstavik. At the Ethics programme several people have read and commented upon drafts of this dissertation. I would like to thank you all, and in particular Dagfinn Føllesdal, Thomas Pogge, Tore Lindholm, Helge Høibraaten, Henrik Syse, Iver Ørstavik, Anne Julie Semb, Lars Johan Materstvedt, Øyvind Kvalnes, Tom Eide, Thomas Hornburg, Alexander Cappelen, Gerhard Øverland, Jens Erik Paulsen, Gunnar Salthe, and Sturla Sagberg. During my years at the Department of Philosophy I have had comments upon drafts and presentations from, or personal discussions on free speech and other relevant topics with, Eyjólfur Kjalar Emilson, who organised the doctoral programme, Bjørn Ramberg, Jon Wetlesen, Olav Gjelsvik, Camilla Serck- Hanssen, John Richard Sageng, Lars Fredrik Händler Svendsen, Ståle R.S. Finke, and others. Norwegian and international free speech law is important to the central case of this dissertation, and relevant to the theoretical discussions as well. As I have no formal qualifications in law, I am grateful to Kyrre Eggen for his thorough and clarifying comments on my analysis of the Kjuus case. Jonathan B. Beere has proof-read the manuscript, and given valuable philosophical comments, as well. Especially in the last half of the project period writing the dissertation has required a considerable part of my time and attention. I cannot thank my wife, Liv Eli Halsa, enough for the patience she had to show in this period of my general absence and absentmindedness. Oslo, March 2000 Erik Lundeby Contents 1 FREE SPEECH AND POLITICAL EXCLUSION ........................................................................................1 Constitutive conditions..................................................................................................................................2 Aspects of the background political theory ...................................................................................................4 A Mutual Recognition Restriction .................................................................................................................5 2 THE PROSECUTION VS KJUUS...................................................................................................................7 THE POLITICAL HISTORY OF JACK ERIK KJUUS............................................................................................9 Norway belongs to Norwegians - the anti-immigration movement.............................................................11 Racism and anti-immigrationism ................................................................................................................13 New measures considered ...........................................................................................................................14 PUBLIC RESPONSES ........................................................................................................................................15 A wide scope of free speech in politics........................................................................................................16 Insufficient reasons for the judgement? ......................................................................................................17 Support for the conviction ...........................................................................................................................18 THE KJUUS CASE IN THE COURTS OF LAW..................................................................................................19 Racial discrimination as a criminal offence................................................................................................21 The content of the programme.....................................................................................................................24 Free speech and anti-immigration as policy...............................................................................................27 The constitutional protection of free speech ...............................................................................................28 Justice Gussgaard on the relation between free speech and Article 135a..................................................32 Justice Gussgaard on the constitutional protection of free speech in Kjuus...............................................35 Human Rights in the Kjuus-judgement........................................................................................................38 Justice Lund's democracy argument for free speech...................................................................................41 Justifying free speech and its limitations.....................................................................................................45 3 THE JUSTIFICATION OF FREE POLITICAL SPEECH ........................................................................47 THE RELATIVE (UN)IMPORTANCE OF FREE SPEECH...................................................................................48 A scepticism about rights ............................................................................................................................49 Nonsense upon stilts ....................................................................................................................................50 Fish: Freedom of speech a conceptual impossibility ..................................................................................52 Speech as rationality and speech as power.................................................................................................54 Access to the media of communication........................................................................................................55 The relevance of scepticism about the right to free speech.........................................................................59 FREE SPEECH AS A CONDITION OF RATIONALITY ......................................................................................59 Prior restraints............................................................................................................................................60 An infection that may spread.......................................................................................................................60 A discouragement of learning .....................................................................................................................62 Liberty and truth..........................................................................................................................................63 Mill’s argument from human beings as rational and fallible......................................................................66 An assumption of infallibility ......................................................................................................................67 Understanding and living one’s belief ........................................................................................................69 Complete liberty? ........................................................................................................................................72 Habermas’ ethics of free discourse .............................................................................................................76 Schauer: A presumption of free speech due to the fallibility of politicians and judges ..............................78 Free speech and political exclusion ii FREE SPEECH AS A POLITICAL RIGHT ..........................................................................................................80 Free speech as legitimate political protest..................................................................................................81 Spinoza on thought, speech and action .......................................................................................................84 Kant: the irrationality of restricting speech................................................................................................86 Constitutional application of
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