Speech, Freedom of

Speech, Freedom of

I INTRODUCTION

Speech, Freedom of, freedom of expression, both oral and written, except in cases where the justification for the restriction is given, as in cases of libel or national security.

Speech, Freedom of

II THEORETICAL PERSPECTIVES

The concern to protect freedom of speech must begin with an understanding of why such a freedom is important. Some theorists argue that freedom of speech is a good in itself, while others are concerned with the importance of freedom of speech in protecting or furthering certain ends.

Concerns for individual autonomy have been used to justify protection of free speech from state interference. A primary justification used by many liberal philosophers is the setting of clear limits to government interference with regard to individual freedom, whereby the government is to be restricted to undermining individual freedom in cases where that freedom can be shown to be causing harm to others. This argument rests on concern for liberty in general and does not provide a special justification for free speech.

On the other hand, the special justification for free speech was advanced by John Stuart Mill in his essay “On Liberty” (1859) on the basis that freedom of speech was necessary for any society that valued the pursuit of truth. Related arguments have been concerned to support the value in a “free market place of ideas”. The jurisprudence of the United States, in particular, has been heavily influenced by liberal justifications that stress the importance of individual freedom from state interference although Justice Oliver Wendell Holmes remarked that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

By way of contrast, some liberal theorists have argued that individual autonomy must also be viewed as a collective good, valuable because it helps individuals to engage as part of a larger society. By this view, the freedom of speech of an individual is seen as part of a society where some may not be in a position to exercise a purely formalistic freedom. Protecting free speech is only valuable, therefore, to the extent that people are provided with the social goods necessary for them to be able to participate in a social context.

This analysis is critical to the free market place of ideas because the market place is often dominated by particular groups who monopolize debate. The prevention of state censorship of speech directed against racial minorities, for example, is often justified by reference to the free market place of ideas or by respect for individual autonomy. Critics would argue that certain minorities often experience alienation because particular groups are able to breed intolerance towards them. Economic recession and fear of other cultures can provide a fertile soil for such intolerance, and minority concerns in this context are easily silenced. So-called “hate speech” may thus serve as a vital weapon for extremists. Both the Canadian Supreme Court and the European Court of Human Rights have upheld legislative measures in this area to regulate hate speech on the basis that the state does have a legitimate interest in combating this type of intolerance. This is in marked contrast to the Supreme Court of the United States, which ruled that state legislation against hate speech was unconstitutional and offended the 1st Amendment of the Constitution.

Justifications based on democratic theory support the protection of freedom of speech as having a special role in a democratic society. The particular relationship between speech and democracy will depend on the particular conception of democracy that is used in any given society and the institutional arrangements for its protection.

III CULTURAL CONTEXTS

The particular theoretical and institutional model for a society will ultimately depend on the values that underpin that society. Fundamentalist states, for example, where liberal and democratic values do not have primacy, may bring different cultural understandings to the meaning of individual and collective freedoms. Further, although within Western liberal democracies there may be a broad sharing of fundamental values, state promotion or interference with freedom of speech is likely to be culturally and historically specific. It follows that the usefulness of comparative analysis cannot be assumed. Comparisons must be sensitive to the particular historical and cultural developments within particular states.

IV THE UNITED KINGDOM AND EUROPE

In the United Kingdom, the constitution is unwritten. Fundamental rights have been trusted largely to the political institutions. The doctrine of Parliamentary Sovereignty gave primacy to Parliament as the supreme representative institution and limited the courts to a largely interpretative role. The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law. Article 10 of the ECHR provides that everyone has the right to freedom of expression and that the right may only be restricted if it satisfies a number of requirements under article 10(2).

State restrictions must be prescribed by law and must be a necessity 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 reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The requirement of necessity as such has been interpreted as meaning a “pressing social need”. This includes a requirement that a state proves that the measures it took were proportionate to its aim and that the least restrictive action has been taken when infringing on fundamental freedoms. See also Human Rights and Civil Liberties.

Speech, Freedom of

Contributed By:
Jane Hanna

Reviewed By:
Simon Levene