Free Speech in a Liberal Democratic Society

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People are rational beings with many desires but in a liberal democratic society these desires have to be regulated, reconciled and controlled so that they do not impinge on the rights of others. From a philosophical perspective, it is a dilemma whether the State should be the source of freedom that regulates citizen participation in society. On the other hand, it can be argued that the State is the natural enemy of free speech as it damages a free society on various grounds.

From a legal point of view, it is apparent that both international treaties and domestic legislations restrict free speech based on intellectual property, crime, morality, discrimination, media, information and security laws. At the same time, however, freedom of speech has been backed up by a number of domestic, regional and international laws to ensure it is not undermined or abused. This leads to the question of where should the line be drawn and the extent of freedom of speech. This essay will analyse the current status of free speech in a liberal democratic society. The discussion will include both a legal, theoretical comparison between the different legislations and an analysis about how they interfere with the right to free speech.

It is evident that in a liberal democratic society freedom of expression is highly valued based on various legislations.[1] In fact, it has been described as the core value of a democratic society as it enhances its powers and builds a sustainable future.[2] It is the view of Fuller, an American legal theorist, that free speech is crucially important to human survival.[3] In addition, he views free expression as an inherent aspect of natural law as it maintains, opens up and safeguards the integrity of the channels of connection through which people communicate what they desire, perceive and feel.[4] This is bolstered by Dworkin who believes that policies and laws are only legitimate if they are implemented democratically. As such, freedom of expression is a condition of legitimate government.[5] Moreover, Mill viewed free speech as a necessity for a flourishing society and individual happiness and he defended extensive freedom of expression.[6] Dworkin also criticised what he calls individuals being ‘passive victims of collective action’ because imposing a collective decision on an opposing individual is illegitimate as free speech is the lifeblood of democracy.[7] Furthermore, regulating freedom of expression is not the best way to combat intolerance as such a quick fix solution might leave the issue unresolved.[8] Quite the opposite, history shows that censorship is likely to make undesirable speech more attractive.[9] This is why Heinze even criticised the regulation of hate speech as inherently discriminatory due to its selective nature.[10]

In addition to the legal theory, free speech is protected by a number of international and regional laws. Based on Article 19 of the General Assembly Resolution (GAR) in 1948, some sort of customary international law imposes legal force which might not necessarily be binding on states, yet many of its provisions are binding.[11] This is also strengthened by Article 19 of the Universal Declaration of Human Rights (UDHR) which states that: ‘Everyone has the right to freedom of opinion and expression, the freedom to hold opinions without interference and to see, receive and import information.’[12] Furthermore, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) emphasises the right to communicate ideas through any kind of media ‘regardless of frontiers’.[13] It also ensures the freedom to receive and seek information, which embeds a number of the rights within the UDHR.[14] Hence, Article 19 of the ICCPR imposes its framework and provisions that states parties to the ICCPR should implement at a national level.[15] Alongside the ICCPR,[16] the right of free speech is granted in regional treaties such as the American Convention on Human Rights (ACHR) (Article 13),[17] the European Convention on Human Rights (ECHR) (Article 10)[18] and the African Charter on Human and Peoples’ Rights (ACHPR) (Article 9).[19]

Even free speech advocates recognise the importance of limiting and framing free expression which is also enhanced by statutory instruments.[20] For instance, it is the view of Judge Oliver Holmes that shouting fire in a packed theatre should not be seen as a form of freedom.[21] He added: ‘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 as it is a question of proximity and degree.’[22] Similarly, Meiklejohn argued that demanding free expression by self-governed men does not mean every person has an unalienable right to express themselves wherever, however and whenever they want.[23] Hence, people should only do so through the appropriate channels.[24]

Promoting equality is perhaps more important than maintaining an absolute free expression policy in a liberal democratic society. This should be the case as some forms of speech are harmful which imposes an obligation on the State to maintain the protection of free society.[25] This contradicts Mill who conditioned freedom of expression upon progressive society as the main priority.[26] Yet, Mill’s view has been criticised by civil rights theorists as it supports individualism, while equality should be the priority for a democratic society.[27] Besides the harm principle proposed by Mill, Fienberg proposed what is called the offence principle as a way of drawing a line between what should and should not be acceptable in free speech.[28] Moreover, Waldron criticised Dworkin’s proposal which supported absolute free speech as he believes in regulating speech because it will promote equality and include minorities in the democratic process.[29] According to Lord Devlin, the public good should prevail over the rights of the individual; thus, the morals of society have to be enforced by law. This prevents the disintegration of society which is an advantage of having a shared morality policy.[30] Based on this argument, regulating free speech does not violate the liberal democratic society norms as it ensures equality and morality. In addition, it would probably be better if undesirable free speech did not occur in the first place.

Aside from the theoretical aspect of the dilemma, freedom of speech is limited by human rights instruments as it is not absolute.[31] Based on the three stage test in Article 19(3) of the ICCPR, restricting speech is a legitimate action if the required criteria are followed.[32] First, the intervention should be in compliance with the law and should be ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.[33] Second, the legally enforced intervention should pursue a legitimate aim such as protection of national security, public morals, health or order or protecting the reputation and rights of others.[34] Third, there should be a necessity for the restriction towards a legitimate aim. The ECHR summarised this by stating that: ‘Freedom of expression is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.’[35]

The same test is applied worldwide to measure the legitimacy of restrictions including the International Covenant, Universal Declaration, African Charter and American Convention.[36] In Europe, although Article 10 of the ECHR allows for various forms of freedom, Article 10(2) restricts this freedom to conditions, formalities, penalties based on what is stated in the law to maintain a democratic society.[37] This shows how freedom of expression is not an absolute and so restricting it should not be seen as a violation of the right of free speech. In Canada, for example, the Canadian Charter[38] maintains and applies a reasonable balance to regulate free expression,[39] whereas in France, Germany and Austria holocaust denial is criminalised due to historically significant reasons.[40] For its part, in the UK, laws like the Racial and Religious Hatred Act 2006[41] and the Public Order Act 1996[42] regulate public order matters but this does not undermine the right of free speech.[43] On the other hand, despite the US first Amendment which strengthens the right of free speech,[44] case law such as Snyder v Phelps shows an application of restrictions there.[45] Finally, in Australia, an application similar to the one in Canada is applied to strike a balance between free speech and harmful speech.[46]

Based on Lingens v Austria,[47] and Handyside v UK,[48] it seems that restricting free speech is a legitimate action that does not violate free expression since it is done for a necessary and appropriate reason. The Human Rights Committee emphasised in Shin v ROK[49] that even if the expression violates the law, Article 19(3) requires the State to explain the importance of implementing these measures.[50] As a result, even though national and international law perceives the importance of implementing grounds to restrict free speech,[51] it should fall within the specified criteria based on the test.[52] Thus, the restrictions are implemented to safeguard and stop people from abusing freedom. It seems at this stage that there is no clear violation on the right of free expression as the imposed limitations are appropriate to the nature of liberal democratic society.[53]

According to Mill, different views and opinions are valuable to society either because of the truth behind the argument or if it is false because this contributes and reinforces the truth and its emergence.[54] He argued that ‘to refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty … all silencing of discussion is an assumption of infallibility’.[55] This argument was followed in the case of Mavlonov v Uzbekistan as Article 19(2)[56] had been violated due to the State not having sufficient grounds to fulfil Article 19(3).[57] In fact, the UN Human Rights Committee held that the authorities should have allowed free expression of a newspaper as well as the right to receive ideas and information.[58] This case involved a newspaper that incited inter-ethnic hostility and the State of Uzbekistan, by silencing expression and regulating hate speech, was criticised for damaging free society.[59] On the other hand, in RAV v City of St Paul’s,[60] it was argued that the State should maintain open and free debate without impairing one side of the debate. This case highlighted the unfairness of free speech regulation as the State allowed anti-sexist and anti-racist speech while prohibiting sexist and racist speech. The Supreme Court decided that the ordinance was fair and favouring tolerance over intolerance was a legitimate reason to limit speech.[61]

Freedom of expression is also regulated by Article 20(2)[62] of the ICCPR which forbids specific types of hate expression. In addition, ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.[63] It seems that Article 20 is working with Article 19 towards collaborating with the States to balance by law which eliminates criminalising.[64] As a result, it can be argued that Article 20(2) does not violate freedom of expression in a liberal democratic society but regulates this freedom positively. This is bolstered by the Human Rights Committee in its Draft General Comment No 34 (2011) which supports the compatibility between Articles 20 and 19 of the ICCPR and sets permissible restrictions on the right of free speech.[65] Hence, the Human Rights Committee re-affirmed that Article 20 provides convenient sanctions in cases of a breach so it will not interpret provisions to impose criminal sanctions in advance.[66]

The case of Ross[67] clarified the overlapping characteristics of Articles 20 and 19 in which the Human Rights Committee stressed the need for consistent interpretations of the Covenant.[68] In this case, the Committee justified limiting the author’s rights to freedom of expression and religion, based on Article 19(3). As a result, Article 20(2) did not violate any rights of expression due to: first, the prohibition of the act stated in the law; second, a legitimate purpose was clear; third, the necessity to achieve its stated purpose.[69] Moreover, there was a violation in a subsection of the New Brunswick Human Rights Act due to the author’s expressions being considered as discriminatory and ‘poisoning the community’.[70] Clearly in this case the State Party prevented the author from expressing himself which undermined liberal democratic values.[71] Furthermore, the Supreme Court decided not to allow the author to practise his religion while being a teacher which seems to be a denial of the freedom and right recognised by the Covenant.[72] Hence, the author’s right of free expression was restricted and held as a sufficient detriment for losing a teaching position as this job carried specific duties.[73] However, as teaching young students carries special duties which if misconducted might harm the pupils, it was proportionate to restrict the author’s rights.[74] This is strengthened by Mill’s point of view that instigation is a form of harming others, which is a legitimate justification for restricting free speech as occurred in this case.[75]

Based on the harm principle introduced by Mill, freedom of speech should not lead to discrimination and harm to any members of society. If this could be avoided, it would lead to a flourishing and healthy society, which is a fundamental aspect of a liberal democratic society.[76] According to Article 26 of the ICCPR, hate and discrimination speech are prohibited by customary international law to avoid causing harm. This clearly states that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law on any ground such as race, colour, sex, language, religion, political or other opinion …’.[77]

To summarise, it is clear at this stage that there are enough legal grounds to restrict freedom of expression. This is also bolstered by a number of legal theorists who are in favour of restricting free speech. The argument is over the extent that the source of freedom which is the State should try to balance equality and liberty. It has been argued that regulating free expression is a mechanism for enhancing free speech which is not an absolute right. On the other side, some debaters claim that the truth shall only be revealed by having diverse opinions. Nowadays, there has been an increase in anti-discrimination and equality laws which have curtailed in limited circumstances free speech. There are number of legislations for restricting free speech such as Article 19(3) of the ICCPR,[78] Article 10(2) of the ECHR,[79] Section 2 of the CCRF,[80] as well as number of domestic legislations in the UK.[81] However, Article 19(3) of the ICCPR is conditioned on three grounds: first, the intervention should be in compliance with the law; second, the legally enforced intervention has to pursue a legitimate aim; third, there is a necessity for the restriction. Based on the given grounds, it seems that there are legitimate bases for restricting free speech which does not violate the rights of a liberal democratic society but rather helps to protect the society.

Word Count: 2510 words

Bibliography

Books

Article 19, Prohibiting Incitement to Discrimination, Hostility or Violence (Article 19 2012)

Barendt E, Freedom of Speech (2nd edn, Oxford University Press 2005)

Beatson J and Cripps YM, Freedom of Expression and Freedom of Information (Oxford University Press 2002)

Devlin P, The Enforcement of Morals (Oxford University Press 1965)

Feinberg J, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press 1984)

Fiss OM, The Irony of Free Speech (Harvard University Press 1998)

Fuller LL, The Morality of Law (Yale University Press 1969)

Hare I and Weinstein J, Extreme Speech and Democracy (2nd edn, Oxford University Press 2010)

Mill J, On Liberty (Penguin Books 2010)

Mill JS, Collected Works of John Stuart Mill (John Mercel Robson (ed), Routledge 2011)

Waldron J, The Harm in Hate Speech (Harvard University Press 2012)

Warburton N, Free Speech: A Very Short Introduction (Oxford University Press 2009)

Wragg PM, Critiquing the UK Judiciary’s Response to Article 10 Post-HRA (University of Durham 2009)

Articles

Bennett C, ‘Expression, Freedom of Speech and the State’ (2017) 8 Jurisprudence 360

Dworkin R, ‘A New Map of Censorship’ (2006) 35 Index on Censorship 130

Emerson T, ‘The Right of Privacy and Freedom of the Press’ [1979] 14 Harvard Civil Rights – Civil Liberties Law Review 329

Flahvin A, ‘Can Legislation Prohibiting Hate Speech Be Justified in Light of Free Speech Principles’ [1995] 18 UNSW Law Journal 328

Heinze E, ‘Viewpoint Absolutism and Hate Speech’ (2006) 69 Modern Law Review 543

Mendel T, ‘Restricting Freedom of Expression: Standards and Principles’ (Centre for Law and Democracy)

Sottiaux S and Rummens S, ‘Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’ Case Law on Freedom of Expression and Freedom of Association’ (2012) 10 International Journal of Constitutional Law 106

Strossen N, ‘Regulating Racist Speech on Campus: A Modest Proposal?’ (1990) 1990 Duke Law Journal 554

Van Alstyne WW, ‘Freedom of Speech and the Flag Anti-Desecration Amendment: Antinomies of Constitutional Choice’ (1991) 29 Free Speech Yearbook 96

Yong C, ‘Does Freedom Of Speech Include Hate Speech?’ (2011) 17 Res Publica 385

Table of Treaties and Legislations

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978)

Canadian Charter of Rights and Freedoms

Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended)

Criminal Justice Act 2003

Criminal Justice and Immigration Act 2008

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)

Malicious Communications Act 1988 (amended 2003)

Public Order Act 1996

Race and Religious Hatred Act 2006

United States Constitution Bill of Rights

Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)

Table of Cases

Handyside v UK App No 5493/72 (7 December 1976)

Lingens v Austria App No 9815/82 (8 July 1986)

Malcolm Ross v Canada Comm No 736/1997 (18 October 2000)

Mavlonov v Uzbekistan Comm No 1334/2004 (27 April 2009)

R v Keegstra (1990) 3 SCR 697

RAV v City of St Paul’s 505 US 377 (1992)

Schenck v United States 249 US 47 (1919)

Shin v Republic of Korea Comm No 926/2000 (25 April 2000)

Snyder v Phelps 562 US 443 (2011)

The Observer and Guardian v The United Kingdom 51/1990/242/313 (24 October 1991)

The Sunday Times v United Kingdom App No 6538/74 (26 April 1979)

Thorgeirson v Iceland Appl No 13778/88 (25 June 1992)


[1] Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press 2009) 3.

[2] Jack Beatson and Yvonne M Cripps, Freedom of Expression and Freedom of Information (Oxford University Press 2002) 17-20.

[3] Lon L Fuller, The Morality of Law (Yale University Press 1969) 185-186.

[4] ibid.

[5] ibid.

[6] ibid.

7 Ronald Dworkin, ‘A New Map of Censorship’ (2006) 35 Index on Censorship 130.

[8] Nadine Strossen, ‘Regulating Racist Speech on Campus: A Modest Proposal?’ (1990) 1990 Duke Law Journal 554.

[9] ibid 559.

[10] Eric Heinze, ‘Viewpoint Absolutism and Hate Speech’ (2006) 69 Modern Law Review 543.

[11] Article 19, Prohibiting Incitement to Discrimination, Hostility or Violence (Article 19 2012).

[12] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 19.

[13] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) art 19.

[14] ibid.

[15] ibid.

[16] Toby Mendel, ‘Restricting Freedom of Expression: Standards and Principles’ (Centre for Law and Democracy).

[17] American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) art 13.

[18] Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) art 10.

[19] African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58, art 9.

[20] Warburton (n 1) 8.

[21] ibid.

[22] Schenck v United States 249 US 47 (1919).

[23] Warburton (n 1) 9.

[24] ibid.

[25] Jeremy Waldron, The Harm in Hate Speech (Harvard University Press 2012).

[26] John Stuart Mill, Collected Works of John Stuart Mill (John Mercel Robson (ed), Routledge 2011).

[27] Christopher Bennett, ‘Expression, Freedom of Speech and the State’ (2017) 8 Jurisprudence 360.

[28] Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press 1984).

[29] Waldron (n 25) 169.

[30] Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 14.

[31] Mendel (n 16) 3.

[32] ICCPR (n 13) art 19(3).

[33] The Sunday Times v United Kingdom App No 6538/74 (26 April 1979) para 49.

[34] The Observer and Guardian v The United Kingdom 51/1990/242/313 (24 October 1991).

[35] Thorgeirson v Iceland Appl No 13778/88 (25 June 1992) para 63.

[36] Stefan Sottiaux and Stefan Rummens, ‘Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’ Case Law on Freedom of Expression and Freedom of Association’ (2012) 10 International Journal of Constitutional Law 106.

[37] ECHR (n 18) art 10(2).

[38] Canadian Charter of Rights and Freedoms, s 2.

[39] R v Keegstra (1990) 3 SCR 697.

[40] Ivan Hare and James Weinstein, Extreme Speech and Democracy (2nd edn, Oxford University Press 2010).

[41] Race and Religious Hatred Act 2006, s 29 (j).

[42] Public Order Act 1996.

[43] See also Malicious Communications Act 1988 (amended 2003); Race and Religious Hatred Act 2006; Criminal Justice and Immigration Act 2008, ss 145-146; Criminal Justice Act 2003.

[44] First Amendment of the United States Constitution Bill of Rights.

[45] Snyder v Phelps 562 US 443 (2011).

[46] Anne Flahvin, ‘Can Legislation Prohibiting Hate Speech Be Justified in Light of Free Speech Principles’ [1995] 18 UNSW Law Journal 328.

[47] Lingens v Austria App No 9815/82 (8 July 1986) paras 39-40.

[48] Handyside v UK App No 5493/72 (7 December 1976).

[49] Shin v Republic of Korea Comm No 926/2000 (25 April 2000).

[50] Thomas Emerson, ‘The Right of Privacy and Freedom of the Press’ [1979] 14 Harvard Civil Rights – Civil Liberties Law Review 329, 331.

[51] Eric Barendt, Freedom of Speech (2nd edn, Oxford University Press 2005) 38.

[52] Caleb Yong, ‘Does Freedom Of Speech Include Hate Speech?’ (2011) 17 Res Publica 385.

[53] Mavlonov v Uzbekistan Comm No 1334/2004 (27 April 2009) para 4.2.

[54] Warburton (n 1) 26.

[55] John Mill, On Liberty (Penguin Books 2010) 27.

[56] ICCPR (n 13) art 19(2).

[57] Mavlonov v Uzbekistan (n 53) para 2.6.

[58] ibid.

[59] Mill (n 55) 28.

[60] RAV v City of St Paul’s 505 US 377 (1992).

[61] Owen M Fiss, The Irony of Free Speech (Harvard University Press 1998).

[62] ICCPR (n 13) art 20(2).

[63] ibid.

[64] Bennett (n 27).

[65] ibid.

[66] ibid.

[67] Malcolm Ross v Canada Comm No 736/1997 (18 October 2000).

[68] ibid para 6.3.

[69] ibid para 6.9.

[70] ibid para 6.10.

[71] ibid para 7.2.

[72] ibid.

[73] Paul Martin Wragg, Critiquing the UK Judiciary’s Response to Article 10 Post-HRA (University of Durham 2009) 103.

[74] ibid 104.

[75] Mill (n 55) 30.

[76] WW Van Alstyne, ‘Freedom of Speech and the Flag Anti-Desecration Amendment: Antinomies of Constitutional Choice’ (1991) 29 Free Speech Yearbook 96.

[77] ICCPR (n 13) art 26.

[78] ibid art 19(3).

[79] ECHR (n 18) art 10(2).

[80] Canadian Charter of Rights and Freedoms, s 2.

[81] Racial and Religious Hatred Act 2006; Public Order Act 1996; Criminal Justice and Immigration Act 2008; Malicious Communications Act 1988 (amended 2003); and Criminal Justice Act 2003.

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