freedom of speech

 

liberty to speak and otherwise express oneself and one's opinions. Like freedom of the press (see press, freedom of the), which pertains to the publication of speech, freedom of speech itself has been absolute in no time or place. The First Amendment to the U.S. Constitution bars the federal government from “abridging the freedom of speech”; since the 1920s the amendment's protections have been extended against state, as well as against federal, action.

Although speech is freer in the United States than in many societies, federal and state laws do restrict many kinds of expression. Some kinds of speech regarded as damaging to individual interests (e.g., libel and slander) are limited primarily by the threat of tort action; other forms of speech (e.g., obscenity) are restricted by law because they are regarded as damaging to society as a whole. Speech that is regarded as disruptive of public order has long been beyond protection (e.g., “fighting words” that cause a breach of the peace or false statements that cause general panic). The government also limits speech that threatens it directly; although sedition laws are rarely prosecuted in the United States, such rationales as a danger to “national security” have been invoked to silence criticism of or opposition to the government. Laws designed to silence opposition to organized religion (e.g., laws against blasphemy or heresy), common in some other countries, would run afoul of the First Amendment.

In recent decades speech controversies in the United States have involved, among other issues, whether and how “hate speech” directed at racial or other groups can be suppressed and what limitations may be imposed on speech in an attempt to combat sexual harassment. The definition of speech itself has been broadened to encompass “symbolic speech,” which consists of actions that express opinions; thus, U.S. courts have held that burning the American flag as a protest is protected speech.

Bibliography

See G. R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004).

Part of a series on
Freedom
By concept
Philosophical freedom Political freedom Liberty
By form
Assembly Association Body: clothing, modifying From government Movement Press Religion and beliefs Speech & expression Thought
Other
Censorship Coercion Human rights Indices Media transparency Negative liberty Positive liberty Self-ownership

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 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.

Theories of free speech

The most important 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 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
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

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 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.

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, 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.^[1]

Various governing, controlling, or otherwise powerful bodies in many places around the world, have attempted to change the opinion of the public or others by taking action that allegedly disadvantages one side of the argument. This attempt to assert some form of control through control of discourse has a long history and has been theorized extensively by philosophers like Michel Foucault. Many consider these attempts at controlling debate to be attacks on free speech, even if no direct government censorship of ideas is involved.

Restrictions on speech that are sometimes characterized as assaults on freedom of speech include the following:

• Defamation (slander and libel)
• Product defamation (criticism of commercial products; sometimes called product libel or product disparagement; for example, the Texas False Disparagement of Perishable Food Products Act)
• Obscenity
• 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 on television
• Hate speech that is defamatory or causes incitement to violence
• Noise pollution
• Speech that contains a copyright infringement
• Company secrets (trade secrets), such as how a product is made or company strategy (Example: Seven herbs and spices of KFC chicken)
• Political secrets: campaign strategies, dirty past/deeds of a politician, etc.
• Classified information: sensitive or secret to protect the national interest.^[2]
• Lies that cause a crowd to panic or causes Clear and present danger or Imminent lawless action, such as Shouting fire in a crowded theater
• Fighting words doctrine:(U.S. 1942) "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace"
• Sedition: speech or organization (vs Freedom of Assembly) that is deemed as tending toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws.
• Treason: to talk publicly of the death of all countrymen or the overthrow of the government
• Blasphemy is illegal in several Western 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)

Specific recent examples that may involve freedom of speech include:

• Gunns Limited, a Timber and woodchip product company in Australia (Gunns Website) is suing 17 individual activists, including Federal Greens Senator Bob Brown, as well as three non-profit environmental groups, for over 7.8 million dollars. Gunns claims that the defendants have sullied their reputation and caused them to lose profits, the defendants claim that they are simply protecting the environment. The defendants have become collectively known as the Gunns 20 (Friends of the Gunns 20). Although this example involves a private law suit, not government censorship, some claim that it is an abuse of defamation law, since it ties up the environmental activists in court proceedings, during which time Gunns may build a pulp mill in northern Tasmania. According to this view, the plaintiffs are not genuinely seeking to vindicate their reputations and they are seeking to scare off other activists with the prospect of ruinous legal expense. Such cases raise interesting questions about the extent to which powerful corporate interests should have access to defamation law.
• In the UK Parliament passed the Serious Organised Crime and Police Act in 2005 banning protest without permit within 1km of Parliament. The first conviction under the Act was in December 2005, when Maya Evans was convicted for reading the names of British soldiers and Iraqi civilians killed in the Iraq War, under the Cenotaph in October, without police permission.^[3]
• In Italy, media Tycoon Silvio Berlusconi censored the satirical Raiot series by Sabina Guzzanti after the first broadcast on RAI (the state TV), arguing that it was plain vulgarity and disrespectful to the government. As his company Mediaset threatened a lawsuit for €21,000,000, the RAI board of directors, appointed by Berlusconi's political majority, closed the series effective immediately, claiming that such a lawsuit was an economic liability for the company. Ms. Guzzanti went to court and won the case, but the Italian government and RAI refused to follow the court order and the show never went on air again. Berlusconi had previously had two highly esteemed journalists (Michele Santoro and Enzo Biagi) and a comedy actor (Daniele Luttazzi) removed from RAI by saying explicitly, in a press conference in Bulgaria, that the new board of directors, which his majority had just appointed, should not allow their "criminal usage" of television.^[4]
• In some European countries, Holocaust denial is a criminal offence. A prominent proponent of this view, David Irving, was sentenced for 3 years in Austria for denying the Holocaust in February, 2006.
• In many countries, public school teachers have limited freedom of speech, both on and off the job, regarding certain issues (e.g., homosexuality). Canadian Chris Kempling was suspended without pay for writing letters, on his own time, to a local newspaper to object to LGBT-related material being introduced into public schools. Kempling pursued the freedom of speech issue all the way to the Supreme Court of Canada without success.
• Some consider the deportation of a foreign peace activist Scott Parkin from Australia in September 2005 to have been an attack on free speech, claimed by the federal government to be a risk to national security.
• Prominent South African journalist and media personality, Jani Allan, has lambasted freedom of speech in South Africa, she herself found her top-rated radio-show and a popular column axed due to her outspoken nature.

The Internet

The development of the Internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored). A gripe site is one of the latest forms of exercising free speech on the Internet.

Web sites which fall foul of government censors in other countries are often re-hosted on a server in a country with no such restrictions. Given that the United States has in many respects the least restrictive governmental policies in the world on freedom of speech, many of these websites re-host their content on an American server and thus escape censorship while remaining available to their target audience. This is especially the case with neo-nazi and other sites promoting racial hatred, since these are prohibited in a number of European countries. It should be mentioned, however, that the US Government has attempted to regulate certain acts and speech on the Internet (US v. Baker).

The Electronic Frontier Foundation (EFF) is an organization dedicated to protecting freedom of speech on the Internet. The Open Net Initiative (ONI) is a collaboration between the Citizen Lab at the Munk Centre for International Studies, University of Toronto, Berkman Center for Internet & Society at Harvard Law School, the Advanced Network Research Group at the Cambridge Security Programme, University of Cambridge, and the Oxford Internet Institute, at Oxford University which aims to investigate, expose, and analyze Internet filtering and surveillance practices in a credible and non-partisan fashion.

Many countries utilize filtering software sold by US companies.^[5]

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.^[6]

Main article: Internet censorship in mainland China

Quotations

General

• "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren 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 strawberry 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

• "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

• Censorship
• Copyleft
• Copyright
• "Fighting words"
• Free content
• Freedom of information
• Freedom of the press
• Freedom of thought
• Gripe Site
• Media transparency
• OAS Special Rapporteur for Freedom of Expression
• Parrhesia

Research Resources

• First Amendment Library
• International Freedom of Expression Exchange

References

1. ^  R.A.V v. City of St. Paul, 505 U.S. 377, 382-84 (1992)
2. ^  Slate Explainer
3. ^  BBC
4. ^  Repubblica
5. ^  NYT
6. ^  Congressional Testimony: “The Internet in China: A Tool for Freedom or Suppression?”. Microsoft.com. Retrieved on 2007-08-18.

External links

This article or section may contain spam. Wikipedia spam consists of external links mainly intended to promote a website. Wikipedia spam also consists of external links to websites which primarily exist to sell goods or services, use objectionable amounts of advertising, or require payment to view the relevant content. If you are familiar with the content of the external links, please help by removing promotional links in accordance with . (You can help!)

• UN-Resolution 217 A III - (Meinungsfreiheit.org)
• ARTICLE 19, Global Campaign for Free Expression
• The journalist fired for calling Bush a coward after 9/11
• Banned Magazine, the journal of censorship and secrecy.
• International Freedom of Expression Exchange
• irrepressible.info - Amnesty International's campaign against internet repression
• 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
• FREEMUSE - Freedom of Musical Expression
• Media Helping Media
• The BOBs - weblog award promoting freedom of speech
• Speech - Web Community Promoting "Freedom of Speech"

Donate to Wikimedia