Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
“Rejecting the free marketplace of ideas: a value-based conception of the limits of free speech” vol. 33 (2017) South African Journal on Human Rights 359-379
The robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being regulated. The assumption fails to acknowledge that some forms of expression are far more valuable and in need of protection in a democracy than others. It also fails to acknowledge that some forms of expression threaten democracy and the dignity of those who live in it. The idea of a content neutral approach to the protection of freedom of expression should, therefore, be rejected as it is not useful for the effective protection of freedom of expression in a democracy that respects human dignity and diversity. To the extent that free expression is believed to operate in a free marketplace of ideas, it furthermore fails to identify (and may even mask) some of the most pressing threats posed to a thriving free expression culture. Instead, turning to the South African Bill of Rights – with its general limitation clause – will provide for a far more nuanced and effective approach to the possible limitation of free expression, provided that certain important safeguards are put in place. The article therefore argues that we should reject the metaphor of the free marketplace of ideas and should, instead, turn to the idea that freedom of expression’s protection depends to some extent at least on whether it advances, protects or reflects the values that form part of the ‘objective normative value system’ embodied in the South African Constitution. The article concludes by arguing that the problems raised by the metaphor of free marketplace of ideas can at least partly be addressed by reimagining freedom of expression as a right that places not only negative obligations on the state to refrain from interfering with the right of individuals to receive and impart information and ideas, but also as a right that places positive obligations on the state to take steps progressively to extend the ability of individuals to receive and impart ideas and to access a more diverse array of information and ideas.
