Freedom of Speech

Freedom of speech is the right to articulate one's opinions and ideas without fear of government retaliation or censorship, or societal sanction. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

The right to freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the UDHR states that:

“Everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

The version of Article 19 in the ICCPR later amends this by stating that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “for respect of the rights or reputation of others” or “for the protection of national security or of public order (order public), or of public health or morals”.

Therefore, freedom of speech and expression may not be recognized as being absolute, and common limitations to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, non-disclosure agreements, the right to privacy, the right to be forgotten, public security, and perjury.

Justifications for such include the harm principle, proposed by John Stuart Mill in On Liberty, which suggests that:

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

The idea of the “offense principle” is also used in the justification of speech limitations, describing the restriction on forms of expression deemed offensive to society, considering factors such as extent, duration, motives of the speaker, and ease with which it could be avoided. With the evolution of the digital age, application of the freedom of speech becomes more controversial as new means of communication and restrictions arise, for example the Golden Shield Project, an initiative by Chinese government's Ministry of Public Security that filters potentially unfavorable data from foreign countries.

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. However, according to a legal case in the Netherlands, the right to freedom of expression does not include the right to use a photograph in a racist manner to incite racial hatred or ethnic discrimination if the photograph was taken without the knowledge of the subject.

Concepts of freedom of speech can be found in early human rights documents. England's Bill of Rights 1689 legally established the constitutional right of 'freedom of speech in Parliament’, which is still in effect. 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. The 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.”

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.”

Today, freedom of speech, or the freedom of expression, is recognized 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. 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

In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are government acting on behalf of the government.

However, laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary with coworkers or attempting to organize a labor union. The First Amendment's freedom of speech right not only proscribes most government restrictions on the content of speech and ability to speak, but also protects the right to receive information, prohibits most government restrictions or burdens that discriminate between speakers, restricts the tort liability of individuals for certain speech, and prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they don't agree.

The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

The Bill of Rights was originally proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states a process known as incorporation through the Due Process Clause of the Fourteenth Amendment.

In Everson v. Board of Education (1947), the Court drew on Thomas Jefferson's correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute.

Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections.

The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964).

Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint pre-publication censorship in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.

The amendment as adopted in 1791 reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Criticism of the government, political advocacy, and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted as Freedom of Speech.

Categories of speech that are given lesser or no protection by the First Amendment include obscenity, fraud, child pornography, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid and the government bears the burden of convincing the court that the restriction is constitutional.

The right to freedom of expression includes the right to take and publish photographs of strangers in public areas without their permission or knowledge.

Legal systems sometimes recognize certain limits on the freedom of speech, particularly when freedom of speech conflicts with other rights and freedoms, such as in the cases of libel, slander, pornography, obscenity, fighting words, and intellectual property. Justifications for limitations to freedom of speech often reference the “harm principle” or the “offense principle”. Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both. Certain public institutions may also enact policies restricting the freedom of speech, for example speech codes at state schools.

Members of Westboro Baptist Church have been specifically banned from entering Canada for hate speech.

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.”

Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment.

However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression:

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

In 1985, Joel Feinberg introduced what is known as the “offense principle”, arguing that Mill’s harm principle does not provide sufficient protection against the wrongful behaviors of others. 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 offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end.”

Hence Feinberg argues that the harm principle sets the bar too high and that law can legitimately prohibit some forms of expression because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm. In contrast, Mill does not support legal penalties unless they are based on the harm principle. Because the degree to which people may take offense 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 offense 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 offense, and the general interest of the community at large.

Along similar lines as Mill, Jasper Doomen has 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 offense is criticized as largely trivial.

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 determine the relative importance of harms.”

Interpretations of both the harm and offense limitations to the 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.

Norman Finkelstein, a writer and professor of political science expressed the opinion that Charlie Hebdo’s abrasive cartoons of Muhammad exceeded the boundaries of free speech, and compared those cartoons with the cartoons of Julius Streicher, who was hanged by the Allies after World War II for the words and drawings he had published. In 2006, in response to a particularly abrasive issue of Charlie Hebdo, French President Jacques Chirac condemned “overt provocations” which could inflame passions. “Anything that can hurt the convictions of someone else, in particular religious convictions, should be avoided”, Chirac said.

In the US, the standing landmark opinion on political speech is Brandenburg v. Ohio (1969), expressly overruling Whitney v. California. 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.”

The opinion in Brandenburg discarded the previous test of “clear and present danger” and made the US citizens right to freedom of (political) speech almost absolute. 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.

The Internet and information society

Free Speech flag, from the AACS encryption key controversy over HD DVD encoding

Jo Glanville, editor of the Index on Censorship, states:

“The Internet has been a revolution for censorship as much as for free speech”.

International, national and regional standards recognize that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet. 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 cyber law case of Reno v. ACLU, the US Supreme Court partially overturned the law. 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:

“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.

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.

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 organization. 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.”

According to Bernt Hugenholtz and Lucie Guibault the public domain is under pressure from the “commoditization 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 commoditization of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law.

Freedom of information

Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognized human right and freedom of information acts as an extension to this right. Freedom of information may also concern censorship in an information technology context, i.e. the ability to access Web content, without censorship or restrictions.

Acts such as the Freedom of Information and Protection of Privacy Act of Ontario, in Canada, also explicitly protect freedom of information.

Internet censorship

The concept of freedom of information has emerged in response to state sponsored censorship, monitoring and surveillance of the Internet. Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet. The Global Internet Freedom Consortium claims to remove blocks to the “free flow of information” for what they term “closed societies”. According to the Reporters without Borders (RWB) “internet enemy list” the following states engage in pervasive internet censorship: China, Cuba, Iran, Myanmar/Burma, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan, and Vietnam.

A widely publicized example of Internet censorship is the “Great Firewall of China” The system blocks content by preventing IP addresses from being routed through and consists of standard firewall and proxy servers at the Internet gateways. The system also selectively engages in DNS poisoning when particular sites are requested. The government does not appear to be systematically examining Internet content, as this appears to be technically impractical. Internet censorship in the People’s Republic of China is conducted under a wide variety of laws and administrative regulations, including more than sixty regulations directed at the Internet. Provincial branches of state-owned organizations vigorously implement censorship.

Consequences

Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.

Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel.

False light laws protect against statements which are not technically false, but which are misleading.

In some civil law jurisdictions, defamation is treated as a crime rather than a civil wrong. The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the International Covenant on Civil and Political Rights, as well as urging:

“State parties should consider the decriminalization of libel”.

In Saudi Arabia, defamation of the state or a past or present ruler is punishable under terrorism legislation.

A person who defames another may be called a “defamer”, “libeler”, or “slanderer”.

Preaching

“Separation of church and state” is a phrase used by Thomas Jefferson and others expressing an understanding of the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution of the United States that reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

The phrase “separation of church and state” is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper. Jefferson wrote,

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Jefferson was echoing the language of the founder of the first Baptist church in America, Roger Williams who had written in 1644,

“[A] Hedge or wall of separation between the garden of the church and the wilderness of the world.”

Article Six of the United States Constitution also specifies that:

“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Preaching is to deliver a sermon or religious address to an assembled group of people, typically in church.

Preaching is to give/deliver a sermon, sermonize, address, speak religious teaching, message, and sermons, publicly proclaim or teach (a religious message or belief).

Preaching is to proclaim, teach, spread, propagate, expound earnestly advocate (a belief or course of action).

Preaching is to advocate, recommend, advise, urge, teach, counsel give moral advice to someone in an annoying or pompously self-righteous way.

Preaching is to moralize, sermonize, pontificate, lecture, harangue;

Lying

A lie is a statement used intentionally for the purpose of deception. The practice of communicating lies is called lying, and a person who communicates a lie may be termed a liar. Lies may be employed to serve a variety of instrumental, interpersonal, or psychological functions for the individuals who use them. Generally, the term “lie” carries a negative connotation, and depending on the context a person who communicates a lie may be subject to social, legal, religious, or criminal sanctions.

In certain situations, however, lying is permitted, expected, or even encouraged. Believing and acting on false information can have serious consequences. Therefore, scientists and others have attempted to develop reliable methods for distinguishing lies from true statements.

So what does all this mean?

Repression of thoughts or censorship of ideas maintains control over the population who than then be controlled by propaganda. Too many variations of opinions causes confusion and mindful shutdown.

What is truth or fact or alt-reality or just plan lies?

“No, those pants don’t make you look fat.”

“I promise I’ll love you in the morning.”

“That is not my baby.”

“You will feel better in the morning.”

“This won’t hurt.”

Today we have the freedom to say whatever we want and get away with most of it no matter who else we might harm but the political correctness might be loosening.

Raise your right hand and repeat after me,

“Do you swear to tell the truth, the whole truth and nothing but the truth?”