Freedom of Speech

7 Key excerpts on "Freedom of Speech"

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  eBook - ePub

  Human Rights Responsibilities in the Digital Age

  States, Companies and Individuals

  • Jonathan Andrew, Frédéric Bernard, Jonathan Andrew, Frédéric Bernard(Authors)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  8 Freedom to Think and to Hold a Political Opinion: Digital Threats to Political Participation in Liberal Democracies JÉRÔME DUBERRY

  I. Introduction

  Freedom of opinion is closely linked to both freedom of thought and freedom of expression: people need to be able to consider a wide range of media in order to form their own opinions. This is particularly important for citizens making political decisions, as a young Benjamin Franklin, under the moniker Silence Dogood, argued in 1722:

  Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty. Freedom of Speech is the right of every man, as far as by it, he does not hurt or control the right of others. And this is the only check it ought to suffer, and the only bounds it ought to know. This sacred privilege is so essential to free governments, that the security of property, and the Freedom of Speech always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarce call anything else his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.1

  With more and more information being shared online, it would seem that expression has never been so free and yet this abundance is strangely not benefitting freedom of thought or freedom of opinion. Indeed, the same technologies that opened up access to information and empowered civil society are now being used to harvest personal data and target people with disinformation, with grave consequences for democracy.

  In November 2018, Nobel laureates Joseph Stiglitz, Shirin Ebadi and Mario Vargas Llosa were among 25 public figures calling for democratic guarantees on freedom of opinion.2 The Information and Democracy Commission published an ‘International Declaration on Information and Democracy’ that could serve as a working basis for political leaders. The text lists the democratic guarantees necessary to ensuring the right to reliable information, privacy, and transparency of powers in a context of globalisation, digitisation and disruption of the public space. This International Declaration also challenges the large tech companies (often referred to as GAFAM: Google, Amazon, Facebook, Apple and Microsoft) to guarantee pluralism and put in place mechanisms to fight against massive online misinformation and political control over the press and the online media ecosystem.3

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  Open Minds

  Academic freedom and freedom of speech of Australia

  • Carolyn Evans, Adrienne Stone(Authors)
  • 2020(Publication Date)
  • La Trobe University Press

    (Publisher)

  Freedom of Speech AND ITS LIMITS

  F reedom of speech is a universally protected right in the constitutions of the world’s democracies and a central tenet of political liberalism.1 An enormous literature on the justifications for Freedom of Speech has settled on three principal lines of justification: Freedom of Speech is essential to the search for ‘truth’ (the argument from truth), it is necessary for or constitutive of a dignified and autonomous life (the argument from autonomy), and it is a necessary condition for democratic self-government (the argument from democracy).2

  At the level of political rhetoric, Freedom of Speech is easy to support. Almost everyone agrees on its importance, and it is often publicly defended, in universities and elsewhere, in rousing terms. Nonetheless, there remain deep and intractable controversies about how Freedom of Speech is best realised.

  For the most part, the debate about Freedom of Speech in universities focuses on the extent to which otherwise legal speech can or should be restricted. There is a temptation to view any restrictions or burdens placed on public expression as violations of Freedom of Speech. In public debate, we often hears declarations like ‘either free speech is for everyone or no one’, ‘free speech cannot just be for ideas we like’ or the Voltaire-inspired ‘I disapprove of what you say, but I will defend to the death your right to say it’.3 Free speech absolutism is fuelled by many grand statements of principle.

  The US Supreme Court is responsible for much of the most inspiring writing about Freedom of Speech. Justice Benjamin N. Cardozo said, ‘Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.’4 And Justice Robert H. Jackson said, ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’5

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  The Legal Theory of Ethical Positivism

  • Tom D. Campbell(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  8 The Political Choices Within Freedom of Speech

  Introduction

  The moral and political articulation of the form and content of fundamental rights is a matter for the democratic political process. The principal ground for this contention is that the concretisation of abstract rights is an integral part of the political right to self-determination. We have also noted that democratic dialogue places more emphasis on humane values and less on the acontextual individualism which characterises court-based legislation. In the last chapter these claims were explored in relation to an example in the area of the regulation of political broadcasting. Here we take up a more general discussion of Freedom of Speech in order to illustrate the complex moral and political issues which are at stake in the determination of the rules that are to apply to the processes of communication. This discussion seeks to bring out that the variety and nature of the considerations which have bearing on these issues are such that they are unsuited for judicial determination. More specifically, it is argued that the diverse and incommensurate values and purposes involved in developing rights and duties governing freedom of expression make it difficult to view the articulation of 'the' right to freedom of expression by way of an interpretation of a brief and abstract affirmation of basic rights or an extrapolation from a constitutionally enshrined concept such as 'representative government'. The choices which require to be made are substantial, controversial and political and, therefore, in accordance with LEP, require to be expressed in the form of rules which are capable of being applied without recourse to controversial moral and political views. This chapter concentrates on these political choices.1 In the next chapter we consider whether it is feasible to formulate acceptable free speech rules which satisfy positivist criteria.

  Freedom of expression is a major test case for LEP. The claim that governments must articulate a basic democratic right of free speech comes up against the immediate objection that governments are the prime offenders against such freedoms. Indeed, it is traditionally assumed that Freedom of Speech is a right which is directed entirely against government. In the dilemmas which arise from the paradox of politics, Freedom of Speech is usually portrayed as a bulwark against the ever-powerful forces which prompt the political Leviathan to curb individual political freedoms. To leave democratic rights in general in the hands of governments appears to resolve the paradox of politics by abandoning the effort to restrain the abuse of government power. The problem must be acknowledged. Indeed, consciousness of the endemic abuse which is inherent in the operations of all political authority is an essential ingredient in any mature political culture. But the response must be that the involvement of government is essential to the attainment of many aspects of freedom of expression and that the furtherance of rights in this as in other areas requires working within the accountable democratic process rather than seeking to impose constraints from the outside.

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  Freedom of expression and the internet

  Updated and revised 2nd edition

  • Wolfgang Benedek, Matthias C. Kettemann(Authors)
  • 2020(Publication Date)
  • Conseil de l'Europe

    (Publisher)

  Chapter 2 The content of freedom of expression online

  Freedom of expression and information is the key human right of the information society, but it is threatened in many ways.25

  This chapter presents Article 10 of the European Convention on Human Rights in its role of ensuring freedom of expression online; and the next chapter analyses how that right can be legitimately restricted. Article 10 paragraph 1 of the Convention reads:

  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

  In a similar way, Article 19 of the 1948 Universal Declaration of Human Rights (UDHR) of the United Nations states that

  Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

  Accordingly, freedom of expression as a human right consists of several elements: freedom of opinion, freedom to express one’s opinion – also called “freedom of expression” – and freedom of information. From these rights together the “freedom of the press” and the “freedom of the media” can be derived, whereas a proposed freedom of international communication has not found general support.

  2.1. Main elements of the right

  The right to freedom of expression covers any kind of expression, whether oral or written, including journalistic freedoms, whether that journalism is in print or online, and all forms of art. We are reminded of this broad reach by Article 19 paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR), which states the right to freedom of expression along the lines of Article 19 of the UDHR. In the case of the Convention, we can look to the elaborate jurisprudence of the European Court of Human Rights. The Court has made it clear already in Handyside that information or ideas which “offend, shock or disturb the state or any sector of population” are covered by freedom of expression.26 This is not to say that mainstream ideas deserve less protection; it is simply that they need it less.

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  Journalism and Free Speech

  • John Steel(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Freedom of Speech, via freedom of the press, in principle at least, is said to help invigorate democracy by facilitating the deliberative process and ensuring that the two-way communication process between government and the people is not stifled. Yet Schauer reminds us that even this principle which stresses equality, is not a sufficiently independent principle of Freedom of Speech. Rather ‘it is a reminder that issues relevant to self-government are especially important, and that individual interests and dignity are almost always implicated by decisions relating to the exercise of political power’ (Schauer 1982: 42). In the United States the articulation of the function of Freedom of Speech in a democracy is often attributed to two leading Justices of the early twentieth century – Justice Louis Brandeis and Justice Oliver Wendell Holmes. Sunstein (1993) suggests that Holmes's position on the virtue of Freedom of Speech is based on two key foundations. The first, and one which is similar to the ideas of John Stuart Mill highlighted below, is related to scepticism and the contestation of truth claims(Sunstein 1993: 25). But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good is better reached by free trade in ideas – 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 on which their wishes safely can be carried out. Holmes cited Sunstein (1993: 11) The idea is that only through a free and open debate (a free market of ideas) can we assume a greater understanding of the truth. Democracy is not the only victor in this scenario, but in principle allows for reason to overcome prejudice and superstition, falsehood to be exposed and error avoided

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  Free Speech and Censorship

  Examining the Facts

  • H. L. Pohlman(Author)
  • 2019(Publication Date)
  • ABC-CLIO

    (Publisher)

  They cannot make an informed choice regarding whether to maintain the status quo or seek additional change through new laws without the opportunity to discuss and debate the issues. Moreover, even if such speech does not lead to changes in current legislative policies, the right to advocate for alternatives gives the opposition a legitimate reason to support the existing system of representative democracy. In this fashion, Freedom of Speech fosters political stability and legitimacy: the opposition had a fair chance to change the public’s mind, but it lost the debate. Lastly, free speech protects a citizen’s right to harshly criticize public officials, thereby discouraging abuses of political power. Justice William Brennan firmly embedded this idea into the Constitution with his remark “that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). The underlying assumption is that criticism of public officials supports the rule of law by encouraging public officials to perform their public duties and responsibilities lawfully and in ways they would be willing to defend publicly. However, when Freedom of Speech is understood as a necessary condition for representative democracy, it arguably only provides protection for speech that is “political” in character. The second justification for Freedom of Speech broadens the scope of the right by underlining the degree to which it is necessary to protect other constitutional rights and values, including those that relate to our private lives, such as freedom of religion, the right to be free from unreasonable searches and seizures, and the right to privacy in general. As Justice Benjamin N. Cardozo argued in Palko v. Connecticut, free speech is “the matrix, the indispensable condition, of nearly every other form of freedom” (302 U.S

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  Media Freedom as a Fundamental Right

  • Jan Oster(Author)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  15. 14 The theoretical foundations of media freedom freedom of expression would be perceived as serving to carry out popular sovereignty and to contribute to the common good. The free speech rationale that can most plainly be characterised as being based on a consequentialist understanding of freedom of expres- sion is the argument from democracy. This argument follows the idea that, in order for an electorate to be appropriately knowledgeable, there must be no constraints on democratic deliberation and the free flow of information and ideas on matters of political concern. 9 Freedom of political debate lies at the heart of democracy and must therefore be afforded very strong protection. In a democratic society ‘the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion’. 10 The right to scrutinise and to criticise one’s govern- ment and its representatives is thus a fundamental principle prevailing throughout the application of any human rights convention. 11 The connection between the argument from democracy and Rous- seau’s general will as a prominent expression of civic republicanism has been succinctly formulated by Hans Kelsen: ‘A subject is politically free insofar as his individual will is in harmony with the “collective” (or “general”) will expressed in the social order.’ 12 Accordingly, ‘[t]he will of the community, in a democracy, is always created through a running discussion between majority and minority, through a free con- sideration of arguments for and against a certain regulation of a subject matter.

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