EXTRAORDINARY RESTRICTIONS ON FREEDOM OF EXPRESSION: CONCEPTUAL ADAPTATION OF THE THREE-PART TEST

Abstract

The purpose of the article is a comprehensive study of the legal mechanism of extraordinary limitation of freedom of expression in Ukraine and the conceptual adaptation of the criteria of the classic three-part test to the specific conditions of martial law based on the provisions of Article 64 of the Constitution of Ukraine. Methods. The methodological basis of this scientific research is an agreed complex of philosophical, general scientific, and special legal methods. The formal-dogmatic method allowed analyzing the content of Article 64 of the Constitution of Ukraine and identifying the legal grounds for interference with communicative freedom. The systemic-structural method served to conceptualize the absolutely inviolable core and peripheral elements of freedom of expression. With the help of the axiological method, a balance between the acute needs of national security and the guarantees of human rights in the context of armed conflict was established. Results. It is proved that in the context of an armed conflict, the general theoretical concept of the «core of the right» requires clear structural differentiation into an absolutely inviolable basis (freedom of political debate and criticism of the government) and more flexible peripheral elements (dissemination of sensitive security data), interference with which can be carried out as quickly as possible. The specificity of Article 64 of the Constitution of Ukraine as a unique mechanism (leges ex ante) is revealed, which establishes an exception to the general rule and allows the introduction of exclusively precise («separate») limitations of powers, excluding the legal possibility of total censorship. It has been found out that the expansion of the discretion of public authorities in an extraordinary period requires a conceptual modification of the traditional algorithm for assessing the legality of interference. Conclusions. The objective necessity of implementing strict time certainty and regular review of legal restrictions as a mandatory fourth criterion of the three-part test is substantiated. This ensures the legitimacy of expanded governmental discretion and effectively prevents abuse of power. The proposed modified methodological approach ensures the state’s ability to flexibly protect national security without irreversibly eliminating the very essence of a person’s democratic rights.