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. The Protestant Reformation ended the Church's monopoly as the final arbiter of truth, affirming the right of individual Christians to interpret scripture freely. On the foundation of the speculation of natural scientists like Galileo, who had been silenced by the Inquisition for endorsing the Copernican view of the universe, philosophers such as Francis Bacon further developed the idea that individuals had the right to express their own conclusions about the world based on empirical observation.

In "Areopagitica" (1644), the English poet and political writer John 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 which anticipated the view which later came to be held almost universally. Milton argued that a nation's unity is created through blending individual differences rather than imposing homogeneity from above and that the ability to explore the fullest range of ideas on a given issue is essential to any learning process. Censorship in political and religious speech is therefore a detriment to material progress and the health of the nation. Milton also argued that if the facts are laid bare, truth will defeat falsehood in open competition. It is up to each individual to uncover his own truth, and no one is wise enough to act as a censor for all individuals.

John Locke argued in his Two Treatises of Government that the proper function of government is to ensure the rights of its people, and the Glorious Revolution of 1688 in England was inspired largely by Lockian ideals, including the principle of religious tolerance. In 1776, the US Declaration of Independence was the first official document to affirm that the function of government is to protect human rights such as "liberty," which are given not by the state, but by God.

The French Declaration of the Rights of Man and of the Citizen passed on August 26, 1789 declared: "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. 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."

The United States Bill of Rights, introduced by James Madison in 1789 as a series of constitutional amendments, came into effect on December 15, 1791. Its First Amendment placed few restrictions on the freedom of speech than that of the French Declaration: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

In the succeeding century, numerous governments adopted constitutions or legislative acts guaranteeing the right of freedom of speech to their citizens. AfterWWII, the United Nations adopted the Universal Declaration of Human Rights, guaranteeing the right of freedom of speech and of conscience to all people. Its Article 19 reads: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Like the French Declaration, the UN set is guarantee of freedom of speech in the context of certain limitations: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

Similar provisions guaranteeing freedom of speech have been adopted by regional conventions throughout the world. The principle of freedom of speech is thus universally recognized today, although its interpretation and application as a matter of law varies widely.

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.^[1]

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.^[2]

• 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.^[3]

• 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.^[4]

• 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." [5]
• In 2008 the Electoral Finance Act was voted into law by the New Zealand Government. This Act severely limits political expression during election year. [6]
• 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. [7] [8] [9]
• 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.^[10]

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.^[11]

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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