Country exceptions

What are the typical exceptions or limitations placed on this right?

Right	Breakout	Contents
Freedom of Association		Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016) . In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities. Religious rights often conflict with the right to free association. As observed in Christian Legal Society v. Martinez, where a Christian student organization argued their First Amendment right to prohibit non-christians from their group, religious associations have used their rights to religious freedom to restrict certain individuals from associating with them. Though, as the Supreme Court ultimately ruled against the Christian Legal Society, rights to free association were ultimately upheld over contradicting religious rights. A similar issued was observed in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. Though, in this case, the Supreme Court asserted the right of groups to prohibit membership from individuals whose beliefs do not coincide with the group mission.Furthermore, Hurley exhibited how religious rights can counter rights to free association, as the decision emphasized that certain individuals could be blocked from associating with religious groups on the basis of their identity. Rights to public safety additionally contradict rights to free association. This is often the argument made when prosecuting individuals associating with criminal and terrorist groups. For example in City of Chicago v. Morales, the Supreme Court upheld a Chicago law which criminalized public gang association, asserting that gang members had no constitutional rights to free association (Cole). Exhibited by the court’s decision, individuals are not constitutionally protected to align with criminal groups, as the public’s right to safety against such groups weighs against personal rights to association. In regards to the right to free political association, parties hold a contradicting First Amendment right to limit party membership. Furthermore, while a candidate can identify as associating with a specific political party on a ballot, that party has the ability to disassociate from them (Legal Information Institute, Cornell Law School). Through this, a candidate often cannot freely affiliate with the party they associate with, exhibiting a contradiction to the right to free association.
Freedom of Expression		The following country-specific descriptions are from a 2019 US Government Report. Argentina: Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals. Canada: The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections. China: China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. France: The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests. Germany: German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast. Japan: The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful. Netherlands: The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not. New Zealand: New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.” Sweden: Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. America places these restrictions on speech much less frequently, or not at all. Hate Speech: Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech. Blasphemy: About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws). Political Content: Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” Public Deliberations: It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. Proportionality Analysis: Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society. References: US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/ RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/ Island School District v. Pico: https://www.oyez.org/cases/1981/80-2043 Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television Article on German Bill: https://www.dw.com/en/germanys-government-approves-hate-speech-bill/a-52433689 Article on EU hate speech: https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Sp eech Blasphemy internationally: https://www.uscirf.gov/reports-briefs/special-reports/respecting-rights-measuring-the-world-s-bl asphemy-laws Blasphemy in Italy: https://end-blasphemy-laws.org/countries/europe/italy/ US Government Report on Free Expression Abroad (info on China, for example): https://fas.org/irp/eprint/lloc-limits.pdf Japanese Penal code: http://www.japaneselawtranslation.go.jp/law/detail/?id=1960&vm=04&re=02
Freedom of Religion		Government Favortism of Religions: Often, a government will claim a favored religion (“A Closer Look”), and this may come at the expense of other groups’ freedom. For example, Greece has an anti-proselytism law designed to protect the Greek Orthodox religion. Registration: Many countries require religious groups to register with a relevant agency to operate (“A Closer Look 2019”). National Security: In 2017, Israel banned Muslim men under 50 from visiting the Western Wall (there is some conflicting reporting as to whether the ban extended to non-Muslim men as well). Israel has similarly restricted other sites during times of tension, such as Jerusalem’s Aqsa mosque (Baker 2014). Given that the Western Wall is a sacred site to Muslims, restricting access should be considered a restriction on Muslim practice. The ban still restricted the ability of people to freely worship even if it extended to non-Muslims. Expression in Public: For example, many European countries ban religious dress in public places (“A Closer Look 2019”). Blasphemy: 71 countries, spread between the Americas, Africa, Asia, and Europe, have anti-blasphemy laws (Bandow 2018). REFERENCES: Luke Baker, “Muslim men over 50 pray at Jerusalem's Aqsa mosque amid tight security”, October 31, 2014: https://www.reuters.com/article/us-mideast-palestinians-israel/muslim-men-over-50-pray-at-jerusalems-aqsa-mosque-amid-tight-security-idUSKBN0IK0PR20141031 Doug Bandow, “Anti‐Blasphemy Laws Are Blasphemous,” American Spectator (Online), June 24, 2018. “A Closer Look” https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/
Privacy Rights		Article 8(2) of the European Convention on Human Rights (ECHR) presents exceptions to the right to privacy. Privacy is granted “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” ( 1950) . The Universal Declaration on Human Rights ( 1948) and the International Covenant on Civil and Political Rights ( 1996) allow for reasonable, non-arbitrary searches. These exceptions allow privacy to be breached with a court-issued warrant. Most exceptions stem from these documents and it should be noted that the United Nations extended the right to privacy to online spheres (Office of the United Nations High Commissioner for Human Rights, 2013, I§5). Additionally, the European Union implemented the General Data Protection Regulation (GDPR) which prevents the sharing of personal data with outside sources (Wolford, n.d.). The GDPR applies to any companies operating in or with the EU causing it to have international implications (Wolford, n.d.). References: European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf International Covenant on Civil and Political Rights. United Nations General Assembly (UNGA). Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Office of the United Nations High Commissioner for Human Rights. ( 2014, June 30). The right to privacy in the digital age. A/HRC/27/37. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf United States Constitution. 1787. https://www.senate.gov/civics/constitution_item/constitution.htm Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/
Voting Rights and Suffrage		Limitations are typically placed on the right to vote on the basis of citizenship, competence, or punishment. Citizenship is usually required in order to vote in any country, and likewise language can be a factor. In terms of competence, restrictions on the right to vote are often determined by age and mental health. Certain countries disenfranchise people with mental disabilities, suggesting that they are not competent to vote, and some go so far as to disallow those under guardianship to vote. Governments also commonly restrict the right to vote in cases where a citizen is imprisoned or has committed a felony. These types of restrictions are usually outlined in a country's constitution (Kirshner). As seen in the United States, citizens above the age of 18 are eligible to vote. However, in certain states, some people with felony convictions are ineligible to vote. In some states, a felon is ineligible to vote indefinitely, and in other states, the felon may eventually regain the right (USAGov). There is debate surrounding whether or not convicted criminals should be disenfranchised, and therefore, it is typically decided according to the state legislature. Those who do not think that criminals should lose their right to vote often suggest that disenfranchisement could cause racial imbalances because ethnic minorities are more likely than others to be incarcerated in the United States. It is also argued that not being able to vote makes it more difficult to rejoin and participate in society following punishment. In opposition, those who think that criminals should lose their right to vote suggest that criminals have proven to have poor judgement and that criminal punishment must entail a loss of societal privileges and freedom (Goldring, K., 2020). Furthermore, following the 2010 U.S. election, certain mechanisms have been used in states that make it more difficult for citizens to vote. These mechanisms include strict photo ID requirements, cutting back on early voting, making it more difficult to register to vote, and attempting to restrict absentee voting (Brennan Center for Justice). Introducing bills and laws that make voting more difficult stem from a fear of election fraud, with proponents of such measures suggesting they are necessary to protect the integrity of U.S. elections. These measures are disproportionately affecting African American voters (Amy Gardner, K. R., 2021). Historically, women have also been denied the right to vote. For instance, in India women were first granted the right to vote in 1935, however, their right to vote was contingent on them being married to a male voter or possessing certain literary skills. Many countries such as Iceland also originally set the minimum voting age to be higher for women than men (Schaeffer, K, 2021). Women in Pakistan did not gain the right to vote until 1947, and women in China were unable to vote until 1949, following a civil war. It was not until the end of the 1960s that most of Africa enfranchised women, and many European countries did not enfranchise women until the 1970s. Many Middle Eastern countries denied women suffrage until the 21st century, with women voting for the first time in Saudi Arabia in 2015. Women continue to face barriers to voting in Middle Eastern countries. Additionally, there can be barriers to voting in countries following conflict. If many people are displaced because of the conflict, voter registration can be especially difficult. Countries may no longer have their voting lists or many displaced people may no longer be able to locate their personal documents, including their proof of citizenship. Women are typically more likely to be displaced during a conflict, and it is common for them to be hesitant to register to vote following a conflict for they fear losing access to assistance for them and their family. Likewise, following conflict, citizens may fear intimidation from their government and therefore not register to vote (United Nations). References: Amy Gardner, K. R. (2021, March 11). How GOP-backed voting measures could create hurdles for tens of millions of voters. The Washington Post. https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states/ Aspinall, G. (2021, March 8). Here Are The Countries Where It's Still Really Difficult For Women To Vote. Grazia. https://graziadaily.co.uk/life/real-life/countries-where-women-can-t-vote/. Goldring, K. (2020, February 24). Should convicted criminals have the right to vote? theperspective.com/. https://www.theperspective.com/debates/politics/convicted-criminals-right-vote/. Kirshner, A. (n.d.). The International Status of the Right to Vote. Democracy Coalition Project. New Voting Restrictions in America. Brennan Center for Justice. (n.d.). https://www.brennancenter.org/our-work/research-reports/new-voting-restrictions-america. Schaeffer, K. (2021, April 28). Key facts about women's suffrage around the world, a century after U.S. ratified 19th Amendment. Pew Research Center. https://www.pewresearch.org/fact-tank/2020/10/05/key-facts-about-womens-suffrage-around-the -world-a-century-after-u-s-ratified-19th-amendment/. United Nations. (n.d.). Chapter 4. United Nations. https://www.un.org/womenwatch/osagi/wps/publication/Chapter4.htm. Who Can and Can't Vote in U.S. Elections. USAGov. (n.d.). https://www.usa.gov/who-can-vote.