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Freedom of Speech

Freedom of speech is the concept of being able to speak freely without censorship. 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 limitation of this freedom is necessary. In 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.

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."

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.

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.

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

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.

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 (subjudicy).

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.

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.)

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.

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.

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".

In 2008 the Electoral Finance Act was voted into law by the New Zealand Government. This Act severely limits political expression during election year.

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.
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.




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.

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.


Historically Poignant moments regarding Freedom of Speech:

399BC Socrates speaks to jury at his trial: 'If you offered to let me off this time on condition I am not any longer to speak my mind... I should say to you, "Men of Athens, I shall obey the Gods rather than you."'

1215 Magna Carta, wrung from the unwilling King John by his rebellious barons, is signed. It will later be regarded as the cornerstone of liberty in England.

1516 The Education of a Christian Prince by Erasmus. 'In a free state, tongues too should be free.'

1633 Galileo Galilei hauled before the Inquisition after claiming the sun does not revolve around the earth.

1644 'Areopagitica', a pamphlet by the poet John Milton, argues against restrictions of freedom of the press. 'He who destroys a good book, kills reason itself.'

1689 Bill of Rights grants 'freedom of speech in Parliament' after James II is overthrown and William and Mary installed as co-rulers.

1770 Voltaire writes in a letter: 'Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write.'

1789 'The Declaration of the Rights of Man', a fundamental document of the French Revolution, provides for freedom of speech .

1791 The First Amend-ment of the US Bill of Rights guarantees four freedoms: of religion, speech, the press and the right to assemble.

1859 'On Liberty', an essay by the philosopher John Stuart Mill, argues for toleration and individuality. '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.'

1859 On the Origin of Species, by Charles Darwin, expounds the theory of natural selection. TH Huxley publicly defends Darwin against religious fundamentalists.

1929 Justice Oliver Wendell Holmes, of the US Supreme Court, outlines his belief in free speech: 'The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.'

1948 The Universal Declaration of Human Rights is adopted virtually unanimously by the UN General Assembly. It urges member nations to promote human, civil, economic and social rights, including freedom of expression and religion.

1958 Two Concepts of Liberty, by Isaiah Berlin, identifies negative liberty as an absence or lack of impediments, obstacles or coercion, as distinct from positive liberty (self-mastery and the presence of conditions for freedom).

1960 After a trial at Old Bailey, Penguin wins the right to publish D H Lawrence's sexually explicit novel, Lady Chatterley's Lover.

1962 One Day In the Life of Ivan Denisovich by Aleksandr Solzhenitsyn describes life in a labour camp during Stalin's era. Solzhenitsyn is exiled in 1974.

1989 Iranian leader Ayatollah Khomeini issues a fatwa against Salman Rushdie over the 'blasphemous' content of his novel, The Satanic Verses. The fatwa is lifted in 1998.

1992 In Manufacturing Consent, Noam Chomsky points out: 'Goebbels was in favour of free speech for views he liked. So was Stalin. If you're in favour of free speech, then you're in favour of freedom of speech precisely for views you despise.'

2001 In the wake of 9/11, the Patriot Act gives the US government new powers to investigate individuals suspected of being a threat, raising fears for civil liberties.

2002 Nigerian journalist Isioma Daniel incenses Muslims by writing about the Prophet Mohammed and Miss World, provoking riots which leave more than 200 dead.

2004 Dutch film maker Theo van Gogh is killed after release of his movie about violence against women in Islamic societies.

2005 The Serious Organised Crime and Police Act bans protest without permit within 1km of the British Parliament.