Freedom of speech

Freedom of speech and expression has a long history that predates modern international human rights instruments.[5] It is thought that the ancient Athenian democratic principle of free speech may have emerged in the late 6th or early 5th century BC.[6] The values of the Roman Republic included freedom of speech and freedom of religion.[7]

Concepts of freedom of speech can be found in early human rights documents.[5] England's Bill of Rights 1689 legally established the constitutional right of freedom of speech in Parliament which is still in effect.[8][9]

One of the world's first freedom of the press acts was introduced in Sweden in 1766, mainly due to classical liberal member of parliament, Ostrobothnian priest, Anders Chydenius.[10][11][12][13] Excepted and liable to prosecution was only vocal opposition to the King and the Church of Sweden.

The Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right.[5] Adopted in 1791, freedom of speech is a feature of the First Amendment to the United States Constitution.[14] The French Declaration provides for freedom of expression in Article 11, which states that:

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.[15]

Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that:

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.[16]

Today, freedom of speech, or the freedom of expression, is recognised in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights.[17] Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:

1. the right to seek information and ideas;
2. the right to receive information and ideas;
3. the right to impart information and ideas

International, regional and national standards also recognise that freedom of speech, as the freedom of expression, includes any medium, whether it be orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression.[17]

Permanent Free Speech Wall in Charlottesville, Virginia, U.S.

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.[18] 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 that of self-government by the people. For such a system to work, an informed electorate is necessary. In order 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 are able to manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from the motive of seeking to benefit society. However, he argues, choosing manipulation negates, in its means, the democratic ideal.[20]

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".[21] 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."[22]

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 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" is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries.[23] Against this backdrop it is important that development agencies create grounds for effective support for a free press in developing countries.[24]

Richard Moon has developed the argument that the value of freedom of speech and freedom of expression lies with social interactions. Moon writes that "by 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."[25]

Members of Westboro Baptist Church (pictured in 2006) have been specifically banned from entering Canada for hate speech.[26]

Countries with laws against Holocaust denial

Freedom of speech is not an absolute right, and legal systems generally set limits on the freedom of speech, particularly when freedom of speech conflicts with other rights and protections, such as in the cases of libel, slander, pornography, obscenity, fighting words, and intellectual property.

In some countries, blasphemy is a crime. For example, in Austria, defaming Muhammad the Prophet of Islam is not protected as free speech.[27][28][29] In contrast, in France, blasphemy and disparagement of the Prophet Muhammad are protected under free speech law.

Justifications for limitations to freedom of speech often reference the "harm principle" or the "offence principle". Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both.[30] Certain public institutions may also enact policies restricting the freedom of speech, for example speech codes at state schools.

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."[30] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment.[31][32][33][34]

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."[35] 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. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm.[35] In contrast, Mill does not support legal penalties unless they are based on the harm principle.[30] Because the degree to which people may take offence varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of 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.[30]

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 largely trivial.[36]

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."[37]

Interpretations of both the harm and offense limitations to freedom of speech are culturally and politically relative. For instance, in Russia, the harm and offense principles have been used to justify the Russian LGBT propaganda law restricting speech (and action) in relation to LGBT issues. A number of European countries that take pride in freedom of speech nevertheless outlaw speech that might be interpreted as Holocaust denial. These include Austria, Belgium, Canada, the Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Russia, Slovakia, Switzerland and Romania.[38] Armenian Genocide denial is also illegal in some countries.

In the U.S., the standing landmark opinion on political speech is Brandenburg v. Ohio (1969),[39] expressly overruling Whitney v. California.[40] In Brandenburg, the US 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.[41]

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.[42][43] Hate speech is also protected by the First Amendment in the United States, as decided in R.A.V. v. City of St. Paul, (1992) in which the Supreme Court ruled that hate speech is permissible, except in the case of imminent violence.[44] See the First Amendment to the United States Constitution for more detailed information on this decision and its historical background.

The Internet and information society

The Free Speech Flag was created during the AACS encryption key controversy as "a symbol to show support for personal freedoms."[45]

Jo Glanville, editor of the Index on Censorship, states that "the Internet has been a revolution for censorship as much as for free speech".[46] International, national and regional standards recognise that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet.[17] 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.[47] 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:[48]

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.[48]

The World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003 makes specific reference to the importance of the right to freedom of expression for the "Information Society" in stating:

We reaffirm, as an essential foundation of the Information society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that 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. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers.[49]

According to Bernt Hugenholtz and Lucie Guibault the public domain is under pressure from the "commodification of information" as information with previously little or no economic value has acquired independent economic value in the information age. This includes factual data, personal data, genetic information and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law.[50]

Some legal scholars (such as Tim Wu of Columbia University) have argued that the traditional issues of free speech -- that "the main threat to free speech" is the censorship of "suppressive states", and that "ill-informed or malevolent speech" can and should be overcome by "more and better speech" rather than censorship -- assumes a scarcity of information. This scarcity prevailed during the 20th century, but with the arrival of the internet, information became plentiful, "but the attention of listeners" scarce. And in the words of Wu, this “cheap speech" made possible by the internet " ... may be used to attack, harass, and silence as much as it is used to illuminate or debate.”[60][61]

In the 21st century, the danger is not "suppressive states" that target "speakers directly", but that

targets listeners or it undermines speakers indirectly. More precisely, emerging techniques of speech control depend on (1) a range of new punishments, like unleashing “troll armies” to abuse the press and other critics, and (2) “flooding” tactics (sometimes called “reverse censorship”) that distort or drown out disfavored speech through the creation and dissemination of fake news, the payment of fake commentators, and the deployment of propaganda robots.[62] As journalist Peter Pomerantsev writes, these techniques employ “information ... in weaponized terms, as a tool to confuse, blackmail, demoralize, subvert and paralyze.”[63][60]

Title page of Index Librorum Prohibitorum, or List of Prohibited Books, (Venice, 1564)

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 system of censorship 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.[64] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture).[65] 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.[65]

In Panegyricae orationes septem (1596), Henric van Cuyck, a Dutch Bishop, defended the need for censorship and argued that Johannes Gutenberg's printing press had resulted in a world infected by "pernicious lies"—so van Cuyck singled out the Talmud and the Qur'an, and the writings of Martin Luther, Jean Calvin and Erasmus of Rotterdam.[66]

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.[64] 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.[67] 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. As a consequence, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books.[65]

First page of John Milton's 1644 edition of Areopagitica, in which he argued forcefully against the Licensing Order of 1643

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.[68] 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,[69] Milton made an impassioned plea for freedom of expression and toleration of falsehood,[68] stating:

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.[68]

This 1688 edition of Jacobus de Voragine's Golden Legend (1260) was censored according to the Index Librorum Expurgatorum of 1707, which listed the specific passages of books already in circulation that required censorship[70][71]

Milton's defense of freedom of expression was grounded in a Protestant worldview and he thought that the English people had the mission to work out the truth of the Reformation, which would lead to the enlightenment of all people. But Milton also articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favor of tolerance for a wide range of views.[68] Freedom of the press ceased being regulated in England in 1695 when the Licensing Order of 1643 was allowed to expire after the introduction of the Bill of Rights 1689 shortly after the Glorious Revolution.[72][73] The emergence of publications like the Tatler (1709) and the Spectator (1711) are given credit for creating a 'bourgeois public sphere' in England that allowed for a free exchange of ideas and information.

As the "menace" of printing spread, more governments attempted to centralize control.[74] The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546. In 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses. As the British crown took control of type founding in 1637 printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, with 800 authors, printers and book dealers being incarcerated in the Bastille in Paris before it was stormed in 1789.[74]

A succession of English thinkers was at the forefront of early discussion on a right to freedom of expression, among them John Milton (1608–74) and John Locke (1632–1704). Locke established the individual as the unit of value and the bearer of rights to life, liberty, property and the pursuit of happiness. However Locke's ideas evolved primarily around the concept of the right to seek salvation for one's soul, and was thus primarily concerned with theological matters. Locke neither supported a universal toleration of peoples nor freedom of speech; according to his ideas, some groups, such as atheists, should not be allowed.[75]

George Orwell statue at the headquarters of the BBC. A defence of free speech in an open society, the wall behind the statue is inscribed with the words "If liberty means anything at all, it means the right to tell people what they do not want to hear”, words from George Orwell's proposed preface to Animal Farm (1945).[76]

By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers.[75] By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophes like Denis Diderot, Baron d'Holbach and Claude Adrien Helvétius.[77] The idea began to be incorporated in political theory both in theory as well as practice; the first state edict in history proclaiming complete freedom of speech was the one issued December 4, 1770 in Denmark-Norway during the regency of Johann Friedrich Struensee.[78] However Struensee himself imposed some minor limitations to this edict on October 7, 1771, and it was even further limited after the fall of Struensee with legislation introduced in 1773, although censorship was not reintroduced.[79]

John Stuart Mill (1806–1873) argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression.[68] Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore, views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed.[80] Furthermore, Mill argued that an opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech.[81]

In her biography of Voltaire, Evelyn Beatrice Hall coined the following sentence to illustrate Voltaire's beliefs: "I disapprove of what you say, but I will defend to the death your right to say it."[82] Hall's quote is frequently cited to describe the principle of freedom of speech.[82] In the 20th Century, Noam Chomsky stated, "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Dictators such as Stalin and Hitler, were in favor of freedom of speech for views they liked only. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise."[83] Lee Bollinger 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." Bollinger argues that tolerance is a desirable value, if not essential. However, critics argue that society should be concerned by those who directly deny or advocate, for example, genocide (see limitations above).[84]

An "unexpurgated" edition of Lady Chatterley's Lover (1959)

The 1928 novel Lady Chatterley's Lover by D. H. Lawrence was banned for obscenity in a number of countries, including the United Kingdom, the United States, Australia and Canada. In the late 1950s and early 1960s, it was the subject of landmark court rulings which saw the ban for obscenity overturned. Dominic Sandbrook of The Telegraph in the UK wrote, "Now that public obscenity has become commonplace, it is hard to recapture the atmosphere of a society that saw fit to ban books such as Lady Chatterley's Lover because it was likely to “deprave and corrupt” its readers."[85] Fred Kaplan of The New York Times stated the overturning of the obscenity laws "set off an explosion of free speech" in the U.S.[86] The 1960s also saw the Free Speech Movement, a massive long-lasting student protest on the campus of the University of California, Berkeley during the 1964–65 academic year.[87]

In 1964 comedian Lenny Bruce was arrested in the U.S. due to complaints again pertaining to his use of various obscenities. A three-judge panel presided over his widely publicized six-month trial in which he was found guilty of obscenity in November 1964. He was sentenced on December 21, 1964, to four months in a workhouse.[88] He was set free on bail during the appeals process and died before the appeal was decided. On December 23, 2003, thirty-seven years after Bruce's death, New York Governor George Pataki granted him a posthumous pardon for his obscenity conviction.[89]

In the United States, the right to freedom of expression has been interpreted to include the right to take and publish photographs of strangers in public areas without their permission or knowledge.[90][91] This is not the case worldwide.

In July 2014, the University of Chicago released the "Chicago Statement", a free speech policy statement designed to combat censorship on campus. This statement was later adopted by a number of top-ranked universities including Princeton University, Washington University in St. Louis, Johns Hopkins University, and Columbia University.[92][93]

Commentators such as Vox's Zack Beauchamp and Chris Quintana, writing in The Chronicle of Higher Education, have disputed the assumption that college campuses are facing a "free-speech crisis".[94][95]

• Curtis, Michael Kent (2000). Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History. Duke University Press. ISBN 0822325292.
• Doomen, Jasper (2014). Freedom and Equality in a Liberal Democratic State. Bruylant. ISBN 9782802746232.
• Godwin, Mike (2003). Cyber Rights: Defending Free Speech in the Digital Age. MIT Press. ISBN 0262571684.
• Grossman, Wendy M. (1997). Net.wars. New York University Press. ISBN 0814731031.
• Kors, Alan Charles (2008). "Freedom of Speech". In Hamowy, Ronald (ed.). The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. pp. 182–85. doi:10.4135/9781412965811.n112. ISBN 978-1-4129-6580-4. LCCN 2008009151. OCLC 750831024.
• Lewis, Anthony (2007). Freedom for the Thought That We Hate: A Biography of the First Amendment. Basic Books. ISBN 9780465039173. OCLC 494134545.
• McLeod, Kembrew (2007). Freedom of Expression: Resistance and Repression in the Age of Intellectual Property. Lawrence Lessig (foreword). University of Minnesota Press. ISBN 978-0816650316.
• Nelson, Samuel P. (2005). Beyond the First Amendment: The Politics of Free Speech and Pluralism. The Johns Hopkins University Press. ISBN 0801881730.
• Semeraro, Pietro (2009). L'esercizio di un diritto. Giuffre Milano.
• Shaw, Caroline. "Freedom of expression and the palladium of British liberties, 1650–2000: A review essay" History Compass (Oct 2020) online

• Article19.org, Global Campaign for Free Expression.
• Free Speech Debate, a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.
• Index on Censorship, an international organisation that promotes and defends the right to freedom of expression.
• Media Freedom Navigator: Media Freedom Indices at a Glance, Deutsche Welle Akademie.
• Special Rapporteur for Freedom of Expression, Organization of American States.