Freedom of Speech

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Freedom of speech is the freedom to speak freely without censorship or limitation. Also called freedom of expression it includes not only verbal speech but any act of communicating information or ideas, including publication, broadcasting, art, advertising, film, and the internet. Freedom of speech and freedom of expression are closely related to the concepts of freedom of thought and conscience.

The right to freedom of speech is not absolute and is commonly subject to limitations, such as on false advertising, "hate speech," obscenity, incitement to riot, and slander. Many countries also place limitations of certain types of political speech, ranging from banning certain parties or ideas considered dangerous to limiting the amount of funds political candidates spend on advertising their campaigns. Religious speech likewise faces limitations, ranging from the outlawing of proselytization to banning prayer in public schools.

The right to freedom of speech is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR), which guarantees "the right to hold opinions without interference. Everyone shall have the right to freedom of expression". Furthermore freedom of speech is recognized in European, inter-American and African regional human rights law, often subject to disclaimers relating the need to balance such right with the need to maintain "public order."

History

In the Judeo-Christian tradition, the right to freedom of speech is a relatively recent one, although the affirmation of one's faith in the face of persecution has a very long and famous history. Famous ancient cases include the persecution of Israelite prophets like Jeremiah and Hosea, the crucifixion of Jesus, and the martyrdom of numerous Christian saints for refusing to recant their faith. However, when ancient Jewish or Christian governments held power in the ancient world, they rarely afforded freedom of speech to those who disagreed with them. In the Christian Roman Empire, "heretics" were often persecuted to expressing ideas deemed to be unorthodox.

In Islamic tradition, religious tolerance for Jews and Christians has always been officially policy, but the right to preach other faiths to Muslims was generally banned. However, freedom of speech as a general principle was occasionally supported. It was first declared in theory in the Rashidun period by the Caliph Umar in the seventh century CE. In the Abbasid Caliphate period, freedom of speech was also declared by al-Hashimi (a cousin of Caliph al-Ma'mun) in a letter to one of the religious opponents he was attempting to convert through reason. A certain amount of academic freedom in Islamic universities also predated the evolution of this principle in Christian Europe. However, criticizing Islam and its prophet remained strictly banned, and religious art was strictly limited, in accordance with the Islamic ban on religious images.

In the West, expressing one's ideas openly often a risky proposition and the Catholic Church retained the position of official arbiter of truth, not only on matters of faith but of "natural philosophy" as well. One of the earliest Western defenses of freedom of expression is "Areopagitica" (1644) by the English poet and political writer John Milton. Milton wrote in reaction to an attempt by the Protestant English republican parliament to prevent "seditious, unreliable, unreasonable, and unlicensed pamphlets". He advanced a number of arguments in defense of freedom of speech: a nation's unity is created through blending individual differences rather than imposing homogeneity from above; that the ability to explore the fullest range of ideas on a given issue was essential to any learning process and truth cannot be arrived upon unless all points of view are first considered; and that by considering free thought, censorship acts to the detriment of material progress. Milton also argued that if the facts are laid bare, truth will defeat falsehood in open competition, but this cannot be left for a single individual to determine. According to Milton, it is up to each individual to uncover their own truth; no one is wise enough to act as a censor for all individuals.

The French Declaration of the Rights of Man declared: 10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law. 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

Theories of free speech

One justification for free speech is a general liberal or libertarian presumption against coercing individuals from living how they please and doing what they want. However, a number of more specific justifications are commonly proposed.

For example, Justice McLachlin of the Canadian Supreme Court identified the following in R. v. Keegstra, a 1990 case on hate speech:

1. Free speech promotes "The free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms
2. It promotes a marketplace of ideas, which includes, but is not limited to, the search for truth
3. It is intrinsically valuable as part of the self-actualization of speakers and listeners
4. It is justified by the dangers for good government of allowing its suppression.

Such reasons perhaps overlap. Together, they provide a widely accepted rationale for the recognition of freedom of speech as a basic civil liberty.

Each of these justifications can be elaborated in a variety of ways and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications, or a justification relating to self-governance. They relate to aspects of free speech's political role in a democratic society. The second is related to the discovery of truth. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy.

This analysis suggests a number of conclusions. First, there are powerful overlapping arguments for free speech as a basic political principle in any liberal democracy. Second, however, free speech is not a simple and absolute concept but a liberty that is justified by even deeper values. Third, the values implicit in the various justifications for free speech may not apply equally strongly to all kinds of speech in all circumstances.

Noam Chomsky states that:

• "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Goebbels was in favor of freedom of speech for views he liked. So was Stalin. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise."
  • Source: In Manufacturing Consent: Noam Chomsky and the Media, 1992
• "If we don't believe in free expression for people we despise, we don't believe in it at all."
  • Source: Interview by John Pilger on BBC's The Late Show, November 25, 1992

Self-governance

Freedom of speech is crucial in any participatory democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms that can pave the way for their replacement. The US Supreme Court has spoken of the ability to criticize government and government officials as "the central meaning of the First Amendment." New York Times v. Sullivan. But "guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government." Time, Inc. v. Hill.

Some suggest that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech – to avoid accountability.

However, it may be argued that some restrictions on freedom of speech may be compatible with democracy or even necessary to protect it. For example, such arguments are used to justify restrictions on the support of Nazi ideas in post-war Germany. They have also been used to justify restrictions on obscenity, which was long thought to be outside the protection of the First Amendment.

Research conducted over the last decade, like the Worldwide Governance Indicators project at the World Bank, recognizes that freedom of speech, and the process of accountability that follows it, have a significant impact in the quality of governance of a country. Voice and Accountability within a country, defined as "the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and free media"^[1] is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries.

Discovering truth

A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. This argument is particularly associated with the British philosopher John Stuart Mill. Justice Oliver Wendell Holmes wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." In Abrams v. United States Justice Holmes also invoked the powerful metaphor of the "marketplace of ideas."

This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.

The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur during the interim. However, even if these weaknesses of the marketplace of ideas are acknowledged, supporters argue that the alternative of government determination of truth and censorship of falsehoods is worse.

Alan Haworth in his book Free Speech (1998), has suggested that the metaphor of a marketplace of ideas is misleading. He argues that Mill's classic defence of free speech, in On Liberty, does not develop the idea of a market (as later suggested by Holmes) but essentially argues for the freedom to develop and discuss ideas in the search for truth or understanding. In developing this argument, Haworth says Mill pictured society not as a marketplace of ideas, but as something more like a large-scale academic seminar. This implies the need for tacit standards of conduct and interaction, including some degree of mutual respect. That may well limit the kinds of speech that are justifiably protected.

Another way of putting this point is to concede Mill's claim that freedom of speech of certain kinds is needed for rational inquiry. This can support the claimed need to protect potentially unpopular ideas. However, it can then be added that this does not necessarily lead to the conclusion that a wide range of speech, including offensive or insulting speech, must be given the same protection.

As put by Mill, the argument can also be seen as somewhat elitist, since it may seem that relatively little speech or expression appeals primarily to the intellect. However, there are senses in which this justification can be extended beyond the speech of individuals who are involved in narrowly intellectual inquiry, such as scientists and academic scholars. In one sense, it merges with justifications based on autonomy, if it is interpreted as relating to the psychological need felt by individuals to pursue truth and understanding. In another sense, it may be extended to the protection of literature and art that has a claim to some kind of social value.

Promoting tolerance

Still another explanation is that freedom of speech is integral to tolerance, which some people feel should be a basic value in society. Professor Lee Bollinger is an advocate of this view and argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society."

This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, such as genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.

Restrictions on free speech

Socialists have historically been denied freedom of speech in a number of countries. This poster promotes Eugene V. Debs' (left) 1912 bid for President of the United States. In 1920 Debs ran again but while incarcerated for speaking out against American involvement in World War I.

Ever since the first consideration of the idea of 'free speech' it has been argued that the right to free speech is subject to restrictions and exceptions. A well-known example is typified by the statement that free speech does not allow falsely "shouting fire in a crowded theatre" (Schenck v. United States - a case relating to the distribution of anti-draft fliers during the World War I). Other limiting doctrines, including those of libel and obscenity, can also restrict freedom of speech. The case Brandenburg v. Ohio found that the US government could restrict free speech only if it was "likely to incite imminent lawless action." To the extent speech may be regulated, it ordinarily must be regulated in a viewpoint-neutral manner. In the United States, when a government proscribes certain speech based on the content, the regulation is presumptively unconstitutional.^[2]

Various governing, controlling, or otherwise powerful bodies in many places around the world, have attempted to change the opinion of the public or others by taking action that allegedly disadvantages one side of the argument. This attempt to assert some form of control through control of discourse has a long history and has been theorized extensively by philosophers like Michel Foucault. Many consider these attempts at controlling debate to be attacks on free speech, even if no direct government censorship of ideas is involved.

Restrictions on speech that are sometimes characterized as assaults on freedom of speech include the following:

• Defamation (slander and libel)
• Product defamation (criticism of commercial products; sometimes called product libel or product disparagement; for example, the Texas False Disparagement of Perishable Food Products Act)
• Obscenity
• Threats
• Lying in court (perjury)
• Talking out of turn during a trial, or talk that causes contempt of court
• Speaking about a trial outside the court room after the judge forbids it (sub judice).
• Speaking publicly without a permit
• Speaking publicly outside of a free speech zone
• Limits on the size of public demonstrations
• Profanity
• Hate speech that is defamatory or causes incitement to violence
• Noise pollution
• Speech that contains a copyright infringement
• Company secrets (trade secrets), such as how a product is made or company strategy (Example: Seven herbs and spices of KFC chicken)
• Political secrets: campaign strategies, dirty past/deeds of a politician, etc.
• Classified information: sensitive or secret to protect the national interest.^[3]

• Lies that cause a crowd to panic or causes Clear and present danger or Imminent lawless action, such as shouting fire in a crowded theater
• Fighting words doctrine:(U.S. 1942) "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace"
• Sedition: speech or organization (vs Freedom of Assembly) that is deemed as tending toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws.
• Treason: to talk publicly of the death of all countrymen or the overthrow of the government
• Blasphemy is illegal in several Western and Muslim countries (freedom of religion as well as speech could be given here)
• The first clause of UK's Terrorism Act 2006 punishes "Encouragement of terrorism" with up to seven years in jail.
• In Sweden a law called "Hets mot folkgrupp" ("Agitation against an ethnic group"), usually translated to hate speech, denies promotion of racism and homophobia.
• In Finland, a new copyright law was enacted in October 2005, which prohibited "services making possible or facilitating the circumvention of effective technical [copy prevention] measures." (See 2005 amendment to the Finnish Copyright Act and Penal Code)
• Article 301 of the Turkish Penal code, makes it illegal to insult 'Turkish national identity'.

Specific recent examples that may involve freedom of speech include:

• Virginia Law - § 18.2-416. Punishment for using abusive language to another.

If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor. (Code 1950, § 18.1-255; 1960, c. 358; 1975, cc. 14, 15.)

File:WBC - Dead Miners 2006.jpg

There is often a fine line defining what speech may or may not be censored. Members of Westboro Baptist Church frequently challenge this line and have been specifically banned from entering Canada for hate speech.

• Gunns Limited, a Timber and woodchip product company in Australia (Gunns Website) is suing 17 individual activists, including Federal Greens Senator Bob Brown, as well as three non-profit environmental groups, for over 7.8 million dollars. Gunns claims that the defendants have sullied their reputation and caused them to lose profits, the defendants claim that they are simply protecting the environment. The defendants have become collectively known as the Gunns 20 (Friends of the Gunns 20). Although this example involves a private law suit, not government censorship, some claim that it is an abuse of defamation law, since it ties up the environmental activists in court proceedings, during which time Gunns may build a pulp mill in northern Tasmania. According to this view, the plaintiffs are not genuinely seeking to vindicate their reputations and they are seeking to scare off other activists with the prospect of ruinous legal expense. Such cases raise interesting questions about the extent to which powerful corporate interests should have access to defamation law.
• In the UK Parliament passed the Serious Organised Crime and Police Act in 2005 banning protest without permit within 1km of Parliament. The first conviction under the Act was in December 2005, when Maya Evans was convicted for reading the names of British soldiers and Iraqi civilians killed in the Iraq War, under the Cenotaph in October, without police permission.^[4]

• In Italy, media Tycoon Silvio Berlusconi censored the satirical Raiot series by Sabina Guzzanti after the first broadcast on RAI (the state TV), arguing that it was plain vulgarity and disrespectful to the government. As his company Mediaset threatened a lawsuit for €21,000,000, the RAI board of directors, appointed by Berlusconi's political majority, closed the series effective immediately, claiming that such a lawsuit was an economic liability for the company. Ms. Guzzanti went to court and won the case, but the Italian government and RAI refused to follow the court order and the show never went on air again. Berlusconi had previously had two highly esteemed journalists (Michele Santoro and Enzo Biagi) and a comedy actor (Daniele Luttazzi) removed from RAI by saying explicitly, in a press conference in Bulgaria, that the new board of directors, which his majority had just appointed, should not allow their "criminal usage" of television.^[5]

• In some European countries, Holocaust denial is a criminal offence. A prominent proponent of this view, David Irving, was sentenced for 3 years in Austria for denying the Holocaust in February, 2006.
• In many countries, public school teachers have limited freedom of speech, both on and off the job, regarding certain issues (e.g., homosexuality). Canadian Chris Kempling was suspended without pay for writing letters, on his own time, to a local newspaper to object to LGBT-related material being introduced into public schools. Kempling pursued the freedom of speech issue all the way to the Supreme Court of Canada without success.
• Some consider the deportation of a foreign peace activist Scott Parkin from Australia in September 2005 to have been an attack on free speech, claimed by the federal government to be a risk to national security.
• Prominent South African journalist and media personality, Jani Allan, has criticized freedom of speech in South Africa. In October 2000, when her contract with Cape Talk Radio was terminated, she claimed that the owners had found her show too controversial and "politically incorrect." [6]
• In 2008 the Electoral Finance Act was voted into law by the New Zealand Government. This Act severely limits political expression during election year. [7]
• On January 27th, 2008, The Hong Kong Police Force arrested suspects who were accused of uploading pornographic images after a multi-billion entertainment company filed a complaint about these photos available on the internet having been fabricated and might charge the offender for defamation. [8] [9] [10]
• In the United States, there is no freedom of speech whatsoever in the private sector. For example, per the terms of at-will employment, an employee can be fired for stating an opinion that the employer disagrees with.
• On March 6, 2008 Associated Press published article called 9/11 attacks harm First Amendment in which its President and CEO Tom Curley states that The shadow of the Sept. 11 terror attacks is eclipsing press freedom and other constitutional safeguards in the United States.

The Internet

The development of the Internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored). A gripe site is one of the latest forms of exercising free speech on the Internet.

Web sites which fall foul of government censors in other countries are often re-hosted on a server in a country with no such restrictions. Given that the United States has in many respects the least restrictive governmental policies in the world on freedom of speech, many of these websites re-host their content on an American server and thus escape censorship while remaining available to their target audience. This is especially the case with neo-nazi and other sites promoting racial hatred, since these are prohibited in a number of European countries. It should be mentioned, however, that the US Government has attempted to regulate certain acts and speech on the Internet (US v. Baker).

The Electronic Frontier Foundation (EFF) is an organization dedicated to protecting freedom of speech on the Internet. The Open Net Initiative (ONI) is a collaboration between the Citizen Lab at the Munk Centre for International Studies, University of Toronto, Berkman Center for Internet & Society at Harvard Law School, the Advanced Network Research Group at the Cambridge Security Programme, University of Cambridge, and the Oxford Internet Institute, at Oxford University which aims to investigate, expose, and analyze Internet filtering and surveillance practices in a credible and non-partisan fashion.

Many countries utilize filtering software sold by US companies.^[11]

The Chinese government has developed some of the most sophisticated forms of internet censorship in order to control or eliminate access to information on sensitive topics such as the Tiananmen Square protests of 1989, Falun Gong, Tibet, Taiwan, pornography or democracy. They have also enlisted the help of some American companies like Microsoft, who have subsequently been criticized by proponents of freedom of speech.^[12]

See also

• Censorship
• Clear and present danger
• Copyleft
• Copyright
• Fighting words
• Fleeting expletive
• Free content
• Freedom of information
• Freedom of the press
• Gripe site
• Heckler's veto
• Imminent lawless action
• Media transparency
• OAS Special Rapporteur for Freedom of Expression
• Parrhesia
• Worldwide Governance Indicators

Template:Articles of the Universal Declaration of Human Rights

Research Resources

• First Amendment Library
• International Freedom of Expression Exchange

Notes

1. ^ A Decade of Measuring the Quality of Governance
2. ^  R.A.V v. City of St. Paul, 505 U.S. 377, 382-84 (1992)
3. ^  Slate Explainer
4. ^  BBC
5. ^  Repubblica
6. ^  NYT
7. ^  Congressional Testimony: “The Internet in China: A Tool for Freedom or Suppression?”. Microsoft.com. Retrieved 2007-08-18.

External links

• Timeline: a history of free speech
• UN-Resolution 217 A III - (Meinungsfreiheit.org)
• ARTICLE 19, Global Campaign for Free Expression
• The journalist fired for calling Bush a coward after 9/11
• Banned Magazine, the journal of censorship and secrecy.
• International Freedom of Expression Exchange
• irrepressible.info - Amnesty International's campaign against internet repression
• Organization of American States - Special Rapporteur for Freedom of Expression
• Organization for Security and Cooperation in Europe - Representative on Freedom of the Media
• African Commission on Human and Peoples' Rights - Special Rapporteur on Freedom of Expression in Africa
• UNESCO - Programme on Freedom of Expression
• FREEMUSE - Freedom of Musical Expression
• Ringmar, Erik. A Blogger's Manifesto: Free Speech and Censorship in the Age of the Internet (London: Anthem Press, 2007).
• The BOBs - weblog award promoting freedom of speech
• UN undermines freedom of expression, rapporteur to nail anti-Islamic speech
• The Expressionist: India's track record
• Worldwide Governance Indicators Worldwide ratings of country performances on Voice and Accountability and other governance dimensions from 1996 to present.

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