Abstract
Freedom of expression is the first political right guaranteed by the Charter of Fundamental Rights and Freedoms. At the same time, three paragraphs below, it establishes a limitation clause that allows the state to restrict freedom of expression under certain conditions. One of the legitimate objectives for the protection of which this freedom may be restricted is state security.
This paper will focus primarily on the role of the context of particular speeches, i.e. the time and place of their utterance or publication, rather than their content. When expressions of racism, Holocaust denial or support for extremist movements are typically restricted, the reason for their restriction is primarily the content of the statement in question. In other cases, however, it is the form and context of their utterance that plays a role. The commentary literature mentions the utterance of inappropriate words at a commemorative act or during a court hearing. In these cases, otherwise permissible speech is limited by the place and context of the event at which it is uttered. The examples cited illustrate the protection of decency and public order, but I feel that a comparable approach can be taken to security as a protected good. As in other cases of restriction of such an important right, freedom, one must be vigilant about its proportionality. I would therefore like to reflect on a simple test of the permissibility of specific speech, based on the criteria of its publicity, its subversive potential and, finally, its appropriateness or overall context.
It is hard to ignore the recent "shutdown" of disinformation websites in relation to the Russian aggression in Ukraine and the ongoing information war in general when considering the limitations on freedom of expression in relation not necessarily to its content, but primarily to its context. The false and manipulative content itself clearly did not meet the legal requirements necessary to restrict it; the sites had existed for a long time, albeit with a warning about their disinformation nature on the Ministry of the Interior's website, but without further restrictions. Only the context of the war was the imaginary "last straw". One has to ask how much subversive potential these manifestations had and whether the public authorities calling for their restriction should not have looked more closely at the justification for such intervention.
Marek Hanč, a former marketing expert of the ANO movement, in an interview for the Insider podcast, says that during a war it is necessary to "manage information". The war can certainly be seen as a prime example of a security threat. But should restrictions on speech be directly proportional to the threat? Are extreme restrictions on freedom of expression permissible in the event of an extreme security threat? What other security situations, apart from war, would justify the state taking such steps? What if, during a pandemic of a contagious disease, the state were to call on those with the technical capacity to shut down all websites that publish information inconsistent with official statements because they have the potential to increase the risk of its spread. The thought experiment may be all the more interesting if we factor in the potential fallacy of public authority. How should it subsequently deal with those whose freedom of expression it has curtailed, even if it later turns out that they were right. Seeking to control information and restrict freedom of expression is a heavy two-edged weapon that should only be used in a truly dangerous fight with an enemy against whom nothing else is sufficient. Moreover, with one whom we are certain that his speech is directly related to a security risk. By restricting freedom of speech, we are admitting our own inability to counter the information expressed in it with the truth.
At the same time, in the light of the fourth paragraph of Article 4 of the Charter, it is always necessary for the public authorities to ensure that the restriction of freedom of expression does not pursue a purpose other than that which is permitted. It is not difficult to imagine a situation in which it is convenient for the political representation to "silence" opponents under the guise of protecting citizens from imminent danger.
The main aim of this paper is to reflect on the role of form and context of speech in relation to its restriction on security grounds.
The questions that I find interesting to discuss are primarily as follows. What situations make "safe" misinformation "dangerous" speech with subversive potential? And can such situations be generally named so that we can restrict free speech in a timely, preventive manner? Does the state have a better chance of recognizing harmful information than the recipient?