Freedom of Expression: Rights, Limits, and Guarantees
Article 20 of the Spanish Constitution (EC) recognizes and protects freedom of expression in its various forms. These are four distinct manifestations recognized autonomously by the Constitution:
- Expression in the strictest sense: The right to freely express one’s ideas and opinions (par. 1).
- Creative freedom: The freedom of literary, artistic, scientific, and technical creation (ap. 1b).
- Academic freedom: The freedom of teaching or the right to free expression of teachers.
- Freedom of information: The right to transmit and receive truthful information freely.
Freedom of expression is a fundamental right, essential for the full development of the individual. The act of expressing or disseminating ideas or opinions must be free, meaning there should be no prior restraint by the State or private individuals. Any concept of the human mind and the freedom of thought is, in principle, equally protected by freedom of expression. Every citizen is entitled to express themselves through any medium (technical, etc.) with identical constitutional guarantees.
Freedom of Information
Freedom of information primarily encompasses two rights:
- The right to communicate truthful information freely through any means of diffusion.
- The reciprocal right to receive such information on an equal footing.
The ownership of information belongs to all citizens, but it particularly affects the press due to their profession. The Constitutional Court (TC) has emphasized the distinction between freedom of expression (transmission of opinions) and freedom of information (reporting facts). The TC interprets information as true when it has been diligently verified before its release, although it may later contain errors or inaccuracies. The consequences of inaccurate information include the loss of constitutional protection under Article 20, making the responsible party liable.
Media Creation and Freedom of Expression
The creation of media can be seen as an instrumental aspect of freedom of expression and information. In STC 12/82 (regarding Antenna 3), the TC stated that the right to disseminate ideas and opinions includes the right to create the material means through which diffusion is possible. Therefore, the right to create any media is included in Article 20, subject to the limitations mentioned by the TC.
Associated Rights for Journalists
Article 20 of the EC also includes associated rights for the exercise of the journalistic profession:
- The conscience clause: This prevents journalists from working in environments guided by ideological principles contrary to their convictions.
- Confidentiality: This is the obligation and right to protect the source of information received in confidence.
Guarantees of Freedom of Expression
The EC provides two important guarantees for all rights encompassed by freedom of expression:
- The prohibition of prior censorship (Article 20.2).
- The exclusion of administrative seizure (Article 20.5).
Article 20.2 cannot be suspended during a state of exception, ensuring the prohibition of censorship remains in place even under exceptional circumstances. However, Article 20.5 can be suspended during a state of emergency.
Limits to Freedom of Expression
Finally, paragraph 4 of Article 20 indicates the limits to these rights. These limits directly affect the rights of Article 230 of the EC and are therefore binding on citizens in the exercise of freedom of expression.