freedom of speech

This article is about freedom of speech as a general concept. For freedom of speech in specific jurisdictions see Freedom of speech (international).

Freedom of speech is the concept of being able to speak freely without censorship. It is often regarded as an integral concept in modern liberal democracies. The right to freedom of speech is guaranteed under international law through numerous human rights instruments, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries. The synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

In practice, the right to freedom of speech is not absolute in any country, although the degree of freedom varies greatly. Industrialized countries also have varying approaches to balance freedom with order. For instance, the United States First Amendment theoretically grants absolute freedom, placing the burden upon the state to demonstrate when (if) a limitiation of this freedom is necessary. Almost all liberal democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle is often lacking.

Theories of free speech

Overview

It is important to understand the various theoretical rationales for freedom of speech if we are to form views about the concept's true nature and its rational limits. In part, the 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 freedom of speech.

For example, Justice McLachlan 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-actualisation of speakers and listeners; and (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.

Self-governance

Freedom of speech is crucial in any 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.

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 in 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.

Advancing autonomy

Another rationale is that freedom of speech is an essential aspect of personhood and autonomy. It has been said, for example, that political protest is a form of self-definition, self-fulfillment, or self-realization, even if the protestor believes the protest to be futile. This idea also suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.

Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression." (Procunier v. Martinez, 416 U.S. 396, 1974). This view is sometimes developed further by referring to the importance for individuals of communicating deeply held beliefs and the value of creativity as expressed in literature, art and many other ways. The issue here is how we should treat other individuals as moral and psychological beings who have a need for self-expression and self-fulfilment.

Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.

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, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.

Restrictions on free speech

Ever since the first consideration of the idea of 'Free Speech' it has been recognised that the right to free speech is subject to restrictions and exceptions. The best-known is typified by the statement that free speech does not allow shouting fire in a crowded theatre, a paraphrase of a statement in the case Schenck v. United States in 1919. 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".

Freedom is defined as 'without limits'. Therefore, Free Speech is without limits. A nation's first Freedom of Speech law is usually without limitations. Limits are often added in new legislation as time passes. According to the ancient Greeks, democracy can only exist in a nation if Freedom of Speech and Freedom of assembly exist there.

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. Alleged examples include the following:

• Defamation/Slander/Liable
• Obscenity
• 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
• speaking publicly without a permit
• speaking publicly outside of a Free Speech Zone
• Limits on the size of public demonstrations
• Foul language on regular TV (not cable/satellite TV) - Some foul language is allowed.
• Names of companies on TV (such as in talk shows)
• Names of other channels on TV (such as in talk shows)
• Hate speech that is defamatory or causes incitement to riot
• Noise pollution
• The content of the speech is a copyright infringement.
• Company secrets: 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
• 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 countries. Defense of freedom of religion is cited.
• The first clause of UK's Terrorism Act 2006 punishes "Encouragement of terrorism" with up to seven years in jail.
• Some countries still have censorship laws that are rarely used. British law technically still prohibits blasphemy, displays of erect penises and promotion of suicide.
• In Sweden a law called "Hets mot folkgrupp" ("Agitation against an ethnic group") 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)

• 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. [1]
• 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. [2]
• 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 Canada, school teachers have limited freedom of speech, both on and off the job, regarding certain issues (e.g., homosexuality). 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.

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 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 MSN, who have subsequently been criticized by proponents of freedom of speech.

Main article: Internet censorship in mainland China

Issues raised by involuntary commitment

A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violate the right of freedom of speech of that individual, in jurisdictions where that is relevant.

Quotations

General

• "People demand freedom of speech to make up for the freedom of thought, which they avoid." Soren Aabye Kierkegaard
• "I disapprove of what you say, but I will defend to the death your right to say it". Evelyn Beatrice Hall writing as S.G. Tallentyre in 1906 (Commonly attributed to Voltaire of whom Hall wrote a biography).
• "...if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility." John Stuart Mill, On Liberty (1859).
• "In a free state, tongues too should be free." Erasmus, The Education of a Christian Prince (1516).
• "Aren't people absurd! They never use the freedoms they do have, but demand those they don't have; they have freedom of thought, they demand freedom of speech." Søren Kierkegaard, Diapsalmata, Either/Or (1843).

In support of free speech

• "If liberty means anything at all it means the right to tell people what they do not want to hear." - George Orwell, Preface to Animal Farm (1946)
• "Goebbels was in favor of free speech for views he liked. So was Stalin. If you're in favor of free speech, then you're in favor of freedom of speech precisely for views you despise. Otherwise, you're not in favor of free speech." Noam Chomsky, Manufacturing Consent: Noam Chomsky and the Media (1992).
• "I have fought censorship all of my adult life. To me, the most precious of all rights in this marvelous country called the United States of America is the freedom to think, write and say whatever is on your mind... That freedom also extends to thoughts that are stupid, ignorant or incendiary. No one needs a First Amendment to write about how cute newborn babies are or to publish a recipe for stawberry shortcake. Nobody needs a First Amendment for innocuous or popular points of view. That's point one. Point two is that the majority-you and I-must always protect the right of a minority-even a minority of one-to express the most outrageous and offensive ideas. Only then is total freedom of expression guaranteed." Lyle Stuart in his introduction to The Turner Diaries
• "The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish." Robert H. Jackson
• "The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate." US Supreme Court Justice Oliver Wendell Holmes in United States v. Schwimmer (1929).
• "He wrote something stupid, a bunch of words that say something we don't agree with. It's only words and ideas, it's not like he beat someone up, he's not committing violence or hurting people, he's simply saying something offensive that we do not want to hear because we don't like it. If we suppress ideas we don't like, the proponents of those ideas will probably fester in secret societies and explode in double-plus ungood ways and we will like those results even less. If we allow people to see their ideas, and we ignore them, they've had their chance and they don't have to feel cheated about not getting exposure. Or if we really don't like their ideas and really need to keep them from convincing other people to believe in them, the answer is to tell people why and they'll learn. But you can't just beat people up because you dislike their stupid opinion. If we go that route, then anyone who is willing to use force can suppress any opinion they don't like, and maybe support opinions we don't like. Then what you get is a society of brutality where it isn't the best ideas that are seen by others, it's only the ideas that have the most vicious thugs to back them up. And it becomes very hard for people to be willing to express any opinion if someone can just pop them one because they say something someone else doesn't like." - Supervisor 246 in Paul Robinson's Instrument of God.

In support of specific limits

• "...When compared with the suppression of anarchy every other question sinks into insignificance. The anarchist is the enemy of humanity, the enemy of all mankind, and his is a deeper degree of criminality than any other. No immigrant is allowed to come to our shores if he is an anarchist; and no paper published here or abroad should be permitted circulation in this country if it propagates anarchist opinions." Theodore Roosevelt, 1908

• "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Justice Oliver Wendell Holmes Jr., 1919

See also

• Freedom of the press
• Copyleft
• Copyright
• "Fighting words"
• Free content
• Freedom of information
• Media transparency
• Parrhesia
• PEN/Newman's Own free speech award
• Support Denmark Movement
• Censorship
• Freedom of thought
• Gripe Site

Research Resources

• First Amendment Library
• International Freedom of Expression Exchange

External links

• The journalist fired for calling Bush a coward after 9/11
• International Freedom of Expression Exchange
• irrepressible.info - Amnesty International's campaign against internet repression
• UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
• 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