Freedom of Expression/Dependants
Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?
Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion.
Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “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” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10).
Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302).
Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights.
Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right.
The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression.
In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927).
The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395).
Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413).
Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporated this right to the states for the first time). In its ruling, the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299).
The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993).
In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12).
While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist.
References:
Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023)
Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023)
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023)
Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023)
De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023)
International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf
Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023)
Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf
Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023)
Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf
Palko v. Connecticut, 302 U.S. 319 (1937), Justia, https://supreme.justia.com/cases/federal/us/302/319/ (accessed June 9, 2023)
Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023)
Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023)
Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023)
Stromberg v. California, 283 U.S. 359 (1931), Justia, https://supreme.justia.com/cases/federal/us/283/359/ (accessed June 9, 2023)
Universal Declaration of Human Rights, 1948, United Nations, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
Whitney v. California, 274 U.S. 357 (1927), Justia, https://supreme.justia.com/cases/federal/us/274/357/ (accessed June 9, 2023)
Wisconsin v. Yoder, 406 U.S. 205 (1972), Justia, https://supreme.justia.com/cases/federal/us/406/205/ (accessed June 9, 2023)