Vol. III - Penn State Abington

This example raises issues regarding the public debate theory, discussed above. If there
are laws that limit the free expression right to advertise, review, or advocate for certain health
foods, those foods do not get their fair spot in the marketplace of ideas. Overall, as a result of
such laws, health food products are stuck with a competitive disadvantage.
This case also speaks to the expressivist theory. The journalist in this case was a health
product expert and had published several times on the subject. This ruling may force the
journalist to find a new career (European Court Ruling, 2009), a career that she is not
passionately drawn to, as she is to that of health products. Such development would, in effect,
limit her personal expression and therefore limit her positive self development.
Magoora sp. zoo v Dyrektor Izby Skarbowej w Krakowie is not the only case in which
freedom of expression was limited by the European Court of Justice. One can also consider the
2001 case of Bernard Connolly. Connolly had written an article critical of monetary integration,
entitled “The Rotten Heart of Europe.” The article resulted in a European Court of Justice
opinion that stated the commission could restrict dissent in order to “protect the rights of others”
and punish individuals who “damaged the institution’s image and reputation,” essentially
outlawing criticisms of the European Union (Evans-Pritchard, 2001).
Again, this speaks to both theories discussed above. First, the public debate theory.
During an important policy debate on monetary integration, all ideas should be allowed into the
marketplace. If some ideas are left out of the marketplace and the entire spectrum of ideas are not
represented, the best policy may not be selected and a market failure may occur. To further an
example from above, it is widely accepted that Alexander Hamilton’s proposed idea of a very
strong monarch-like president had made James Madison’s concept of the presidency look
moderate and lead to it being accepted (Stewart, 2007:151-162). One can see how even radical
ideas, such as Hamilton’s or Connolly’s, which appear to have little value or support, may play a
large role in shaping public opinion and the outcomes of certain debates.
The Connolly case also has expressivist theory implications: if Connolly was not
permitted to write these articles, he would have to find another career, that perhaps would limit
his positive self-development.
The theories that proclaim a robust free expression regime produces an overall good for
society and the individual should be codified into legal systems. The United States has succeeded
in doing this. As this paper has demonstrated, the European Union has thus far largely failed.
The EU policy makers and legal scholars should therefore follow the American example in order
to provide the EU citizens with a more robust free expression environment.
References
Bobbitt, R. (2007). Exploring communication law: A Socratic approach. Boston: Allyn &
Bacon.
Brandenburg v. Ohio , 395 U.S. 444 [1969].
Ekstrand, S. (2009, Nov 19). Restriction on freedom of speech Retrieved April 18, 2009, from
http://www.lett.dk/Default.aspxID=841&M=News&PID=2259&NewsID=549
THE DIALECTICS ▲ 2009
www.abington.psu.edu/dialectics
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