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?”
