freedom of speech

Historical origins

Freedom of speech and expression has a long history that predates modern international human rights instruments. It is thought that the ancient Athenian democratic principle of free speech may have emerged in the late 6th or early 5th century BC.

Freedom of speech was vindicated by Erasmus and Milton. Edward Coke claimed freedom of speech as "an ancient custom of Parliament" in the 1590s, affirmed in the Protestation of 1621. Restating what is written in the English Declaration of Right, 1689, England's Bill of Rights 1689 legally established the constitutional right of freedom of speech in Parliament, which is still in effect. This so-called parliamentary privilege includes no possible defamation claims, meaning Parliamentarians are free to speak up in the House without fear of legal action. This protection extends to written proceedings: for example, written and oral questions, motions and amendments tabled to bills and motions. Taking refuge in England in 1726, Voltaire wrote about his admiration for the tolerance and freedom of speech in England in his Letters on the English (1733), which he strived to introduce into his native France.

One of the world's first freedom of the press acts was introduced in Sweden in 1766 (Swedish Freedom of the Press Act), mainly due to the classical liberal member of parliament and Ostrobothnian priest Anders Chydenius. In a report published in 1776, he wrote:No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.Under the leadership of Anders Chydenius, the Caps at the Swedish Riksdag in Gävle on December 2, 1766, passed the adoption of a freedom of the press regulation that stopped censorship and introduced the principle of public access to official records in Sweden. Excluded were defamation of the king's majesty and the Swedish Church.

The Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, expressly affirmed freedom of speech as an inalienable right. Adopted in 1791, freedom of speech is a feature of the First Amendment to the United States Constitution. The French Declaration provides for freedom of expression in Article 11, which states that:

History of dissent and truth

Before the invention of the printing press, a written work, once created, could only be physically multiplied by highly laborious and error-prone manual copying. No elaborate censorship system and control over scribes existed, who until the 14th century were restricted to religious institutions, and their works rarely caused wider controversy. In response to the printing press, and the theological heresies it allowed to spread, the Roman Catholic Church moved to impose censorship. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture). The origins of copyright law in most European countries lie in efforts by the Roman Catholic Church and governments to regulate and control the output of printers.

In 1501, Pope Alexander VI issued a Bill against the unlicensed printing of books. In 1559, Pope Paul IV promulgated the Index Expurgatorius, or List of Prohibited Books. The Index Expurgatorius is the most famous and long-lasting example of "bad books" catalogues issued by the Roman Catholic Church, which presumed to be in authority over private thoughts and opinions, and suppressed views that went against its doctrines. The Index Expurgatorius was administered by the Roman Inquisition, but enforced by local government authorities, and went through 300 editions. Amongst others, it banned or censored books written by René Descartes, Giordano Bruno, Galileo Galilei, David Hume, John Locke, Daniel Defoe, Jean-Jacques Rousseau and Voltaire. While governments and church encouraged printing in many ways because it allowed for the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. Consequently, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books.

The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. Areopagitica, published in 1644, was John Milton's response to the Parliament of England's re-introduction of government licensing of printers, hence publishers. Church authorities had previously ensured that Milton's essay on the right to divorce was refused a license for publication. In Areopagitica, published without a license, Milton made an impassioned plea for freedom of expression and toleration of falsehood, stating:

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.

Relationship to other rights

The right to freedom of speech and expression is closely related to other rights. It may be limited when conflicting with other rights (see limitations on freedom of speech). The right to freedom of expression is also related to the right to a fair trial and court proceedings, which may limit access to the search for information, or determine the opportunity and means in which freedom of expression is manifested within court proceedings. As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others. However, greater latitude is given when criticism of public figures is involved.

The right to freedom of expression is particularly important for media, which play a special role as the bearer of the general right to freedom of expression for all. However, freedom of the press does not necessarily enable freedom of speech. Judith Lichtenberg has outlined conditions where freedom of the press may constrain freedom of speech. For example, if all the people who control the various media of publication suppress information or stifle the diversity of voices inherent in freedom of speech. This limitation was famously summarised as "Freedom of the press is guaranteed only to those who own one". Lichtenberg argues that freedom of the press is simply a form of property right summed up by the principle "no money, no voice".

As a negative right

Freedom of speech is usually seen as a negative right. This means that the government is legally obliged to take no action against the speaker based on the speaker's views, but that no one is obliged to help any speakers publish their views, and no one is required to listen to, agree with, or acknowledge the speaker or the speaker's views. These concepts correspond to earlier traditions of natural law and common law rights.

Democracy in relation to social interaction

Freedom of speech is understood to be fundamental in a democracy. The norms on limiting freedom of expression mean that public debate may not be completely suppressed even in times of emergency. One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn. He has argued that the concept of democracy is self-government by the people. For such a system to work, an informed electorate is necessary. To be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meiklejohn, democracy will not be true to its essential ideal if those in power can manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from seeking to benefit society. However, he argues, choosing manipulation negates, in its means, the democratic ideal.

Eric Barendt has called this defence of free speech on the grounds of democracy "probably the most attractive and certainly the most fashionable free speech theory in modern Western democracies". Thomas I. Emerson expanded on this defence when he argued that freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as a "safety valve" to let off steam when people might otherwise be bent on revolution. He argues that "The principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus". Emerson furthermore maintains that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay".

Research undertaken by the Worldwide Governance Indicators project at the World Bank indicates that freedom of speech and the process of accountability that follows it have a significant impact on 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" is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries. Against this backdrop it is important that development agencies create grounds for effective support for a free press in developing countries.

Richard Moon has argued that the value of freedom of speech and expression lies in social interactions. Moon writes, "Communicating an individual forms relationships and associations with others – family, friends, co-workers, church congregation, and countrymen. By entering into discussion with others an individual participates in the development of knowledge and in the direction of the community".

Political speech

In the U.S., the standing landmark opinion on political speech is Brandenburg v. Ohio (1969), expressly overruling Whitney v. California. In Brandenburg, the U.S. Supreme Court referred to the right even to speak openly of violent action and revolution in broad terms:[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action. The opinion in Brandenburg discarded the previous test of "clear and present danger" and made the right to freedom of (political) speech protections in the United States almost absolute.

Freedom of information

Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognised human right and freedom of information acts as an extension to this right. Freedom of information may also concern censorship in an information technology context, i.e., the ability to access Web content, without censorship or restrictions.

Freedom of information can also be explicitly protected by acts. For example, in Canada, provinces have acts suchas the Freedom of Information and Protection of Privacy Act of Ontario or Freedom of Information and Protection of Privacy Act of Alberta. The country-wide Access to Information Act gives Canadian citizens, permanent residents, and any person or corporation present in Canada a right to access records of government institutions that are subject to the Act.

Limitations

Some do not regard freedom of speech as absolute. Most legal systems generally set limits on it, particularly when it conflicts with other rights and protections, such as in cases of libel, slander, pornography, obscenity, fighting words, and intellectual property. Public support for limiting freedom of speech varies by form and time. Some limitations to freedom of speech may occur through legal sanction, and others may occur through social disapprobation.

Time, place, and manner

Limitations based on time, place, and manner apply to all speech, regardless of the view expressed. They are generally restrictions that are intended to balance other rights or a legitimate government interest. For example, a time, place, and manner restriction might prohibit a noisy political demonstration at a politician's home during the middle of the night, as that impinges upon the rights of the politician's neighbors to quiet enjoyment of their own homes. An otherwise identical activity might be permitted if it happened at a different time (e.g., during the day), at a different place (e.g., at a government building or in another public forum), or in a different manner (e.g., a silent protest). Funeral protests are a complex issue in the United States. It is a right for Americans to hold a peaceful protest against various policies they deem unreasonable. It is a question of whether or not it is appropriate to protest funeral proceedings through the time, place, and manner outlook. Because of recent flare-ups, legislation has been implemented to limit this. Now, funeral protests are governed and prohibited by law on a state-to-state basis inside the United States.

Jo Glanville, editor of the Index on Censorship, states that "the Internet has been a revolution for censorship as much as for free speech". International, national and regional standards recognise that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet. The Communications Decency Act (CDA) of 1996 was the first major attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the US Supreme Court partially overturned the law. Judge Stewart R. Dalzell, one of the three federal judges who in June 1996 declared parts of the CDA unconstitutional, in his opinion stated the following:

The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.[...] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalising obscenity and child pornography. [...] As we learned at the hearing, there is also a compelling need for public educations about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that Government's permissible supervision of Internet contents stops at the traditional line of unprotected speech. [...] The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff's experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos." Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.

Content viewed as harmful and offensive

Some views are illegal to express because some perceive them to be harmful to others. This category often includes speech that is both false and potentially dangerous, such as falsely shouting "Fire!" in a theatre and causing a panic. Justifications for limitations to freedom of speech often reference the "harm principle" or the "offence principle".

In On Liberty (1859), John Stuart Mill argued that "...there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered". Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment.

In 1985, Joel Feinberg introduced what is known as the "offence principle". Feinberg wrote, "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offence (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end". Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. Nevertheless, as offending someone is less serious than harming someone, the penalties should be higher for causing harm. In contrast, Mill does not support legal penalties unless they are based on the harm principle. Because the degree to which people may take offence varies, or may be the result of unjustified prejudice, Feinberg suggests that several factors need to be taken into account when applying the offence principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offence, and the general interest of the community at large.

Jasper Doomen argued that harm should be defined from the point of view of the individual citizen, not limiting harm to physical harm since nonphysical harm may also be involved; Feinberg's distinction between harm and offence is criticized as essentially trivial.

In 1999, Bernard Harcourt wrote of the collapse of the harm principle: "Today the debate is characterized by a cacophony of competing harm arguments without any way to resolve them. There is no longer an argument within the structure of the debate to resolve the competing claims of harm. The original harm principle was never equipped to determine the relative importance of harms".