Freedom of speech
Freedom of speech is the right to freely say what you please, as well as the related right to hear what others have stated. Recently, it has been commonly understood as encompassing full freedom of expression, including the freedom to create and distribute movies, pictures, songs, dances, and all other forms of expressive communication.
Freedom of speech is often regarded as an integral concept in modern democracies, where it is understood to outlaw government censorship. Thus states may still punish (but not prohibit) certain damaging types of expressions, notably sedition, defamation, publishing secrets regarding matters of state security, etc.
But as Tocqueville pointed out, people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression of speech is even more difficult to prevent than government suppression, there are questions about whether it truly falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action.
Theories of free speech
One theory is that freedom of speech is crucial in any democracy, because open discussions of candidates are essential for voters to make informed elections 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.
Alternatively, it may be argued that some restrictions on freedom of speech may be compatible with democracy or necessary to protect it. For example, such arguments are used to justify restrictions on support of Nazi ideas in post-war Germany.
A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. 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." 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, because they argue that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some drown out others because of better resources to allow their voices to be heard.
Another argument is that it is wrong to assume that truth necessarily will trump over falsehood, and we can see this through history that people may be swayed by emotion rather than reason. Also if truth ultimately prevails, enormous harms can occur in the interim. However, the response to these criticisms is to concede the problems with the marketplace of ideas, but to argue that the alternative of government determination of truth and censorship of falsehoods is perhaps worse.
For more discussion of the reasons behind ideas becoming accepted as truth see meme theory.
Another rationale is that it is an essential aspect of personhood and autonomy. Professor Baker said that "to engage voluntarily in a speech act is to engage in self-definition or expression. A Vietnam war protester may explain that when she chants 'Stop This War Now' at a demonstration, she does so without any expectation that her speech will affect continuance of the war ... rather, she participates and chants in order to define herself publicly in opposition to the war. This war protester provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self-fulfillment or self-realization." This view suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.
Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit -- a spirit that demands self-expression." (Procunier v. Martinez , 416 U.S. 396, 1974).
Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.
Another explanation is that it is integral to tolerance, which should be a basic value in our society. Professor Lee Bollinger is an advocate of this view and argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society."
This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.
Freedom of speech in the United States
Main article: Freedom of speech in the United States
In the United States freedom of expression is protected by the First Amendment to the United States Constitution. There are many exceptions to this general rule, including the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. The Miller test in particular rarely comes into effect.
Freedom of speech in the European Union (and the area of the Council of Europe)
The European Convention on Human Rights, when signed on 4 November 1950, proclaimed a broad range of human rights already in existence in the signatories countries. These rights include Article 10, which entitles all citizens to free expression.
- "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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."
It also included some other restrictions:
- "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Each country then had to alter their laws to confirm with this, where necessary. In 1998, the United Kingdom implemented the Human Rights Act which granted the judiciary power to apply these rights to cases, and a requirement for Parliament to check compatibility of new laws with the Convention rights. If a judge finds a law to be 'incompatible' with the given Convention rights, then the law must be amended to incorporate these protections.
European-wide cases have been heard in the European Court of Justice as well as the European Court of Human Rights to guarantee these privileges - and cases have tested the need for professional integrity (as a journalist or lawyer) and the compatibility of one with the Human Rights law. The Human Rights Court has also targeted the French laws on journalism as being incompatible.
Freedom of speech in Germany
Reporters without borders world-wide press freedom index 2002 ranked Germany 7th out of 139 countries (3 way tie).
Freedom of speech is guaranteed by article 5 of the German Grundgesetz ("basic Law"). There are, however, some restrictions, for example personal insults or hate speech (Volksverhetzung). The latter includes the propagation of neonazist ideas and the use of nazist symbols like the swastika, except for purposes of art, science or education. These restrictions are justified with the argument that they are necessary to protect the democratic constitution of Germany.
Freedom of speech in Canada
The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms. Due to section 1 of the Charter, the so-called limitation clause, Canada's freedom of expression differs from the provision guaranteeing freedom of speech in the United States of America in a fundamental manner. The section 1 of the Charter states:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)
This section is double edged. First it implies that a limitation on freedom of speech can be justified if it is a reasonable limit. Conversely, it implies that a restriction can be invalidated if it is shown that it is not a reasonable limit.
The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity. An example of the latter use is that case Forget v. Quebec (Attorney General) , (2 S.C.R. 90) decision in which the Supreme Court invalidated the Charter of the French Language also known as Bill 101. One of the reasons it gave for invalidating it was that it was not a reasonable limitation under sec. 9 of the Quebec Charter of Rights and Freedoms and under art. 1 of the Canadian Charter of Rights and Freedoms. This decision was one of the first cases after the Oakes test was established. Bill 101 was subsequently put into effect though by invoking the notwithstanding clause of the Charter.
Freedom of speech in Australia
Unlike most other nations that legally protect freedom of speech, Australia does not have a bill of rights. However, in 1992 the High Court of Australia judged in the case of Australian Capital Television et al. v. Commonwealth of Australia (Adban) that the Australian Constitution, by providing for a democratic system of government, implied the protection of freedom of speech as an essential element of that system.
Freedom of speech and 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) .
Freedom of speech and involuntary commitment
A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violate the right of freedom of speech of that individuals, in jurisdictions where that is relevant.
- The Thomas Jefferson Center for the Protection of Free Expression
- The International Freedom of Expression eXchange