What If We Must Choose?
What If We Must Choose?
This chapter argues for the possibility that, despite our best efforts, a process of case-by-case adjudication cannot produce the specificity and clarity that we are seeking. When extremely important but defeasible fundamental rights of supposedly equal value are at stake—if we are not prepared to accept a degree of inconsistency which might be acceptable in other less emotionally charged areas—we may be forced to accept that our so-called balancing is really driven by a host of largely subjective beliefs and attitudes and that judges are no more free of those attributes than other rational human beings. We would then be forced to choose. It is further argued that freedom of expression, including religious expression, should prevail over state interests unless that expression incites immediate violence against others or urges the overthrow of the political order and there is realistic likelihood that it can have either of those effects. When privacy conflicts with freedom of expression, in disputes among private parties, freedom of expression should presumptively prevail in most circumstances, that is, that any balancing should have a strong bias towards freedom of expression.
Keywords: case-by-case, judicial decision making, courts, human rights, privacy, freedom of expression
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