Source/Freedom of Expression

History

What is the oldest source in any country that mentions this right?

The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to "say what one pleased" a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2017, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress.

However, regarding modern history, the first legal document to declare these rights to freedom of expression was the English Bill of Rights in 1689 by William III and Mary II after the Glorious Revolution. This document outlined civil and human rights that were to be enjoyed by all men, and the document gave Parliament power over the monarch, increasing the amount of power given to the people.

What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE

Afghanistan

In Afghanistan's 2004 constitution Article 34 explicitly protects the freedom of expression. With every Afghan having the right to “express through speech, writing, illustrations as well as other means in accordance with the provisions of the constitution.”

“Afghanistan 2004 Constitution.” Constitute. https://www.constituteproject.org/constitution/Afghanistan_2004?lang=en.

Argentina

National Constitution (1853)

Australia

The Constitution does not explicitly protect freedom of expression, but in 1992 the High Court of Australia ruled in favor of political expression, setting a precedent and implying freedom of expression

Brazil

Brazil’s seventh Constitution (1988)

Canada

Canadian Charter of Rights and Freedoms (1982)

China

The Constitution of the People’s Republic of China (1982)

France

Declaration of the Rights of Man and of the Citizen (1789)

Germany

Weimar Constitution of 1919

Ghana

1992 Constitution of Ghana

India

The Constitution of India Bill (1895)

Indonesia

1945 Constitution

Israel

Loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court

Italy

Constitution of 1948

Japan

1947 Constitution

Kenya

1963 Constitution

Mexico

Mexican Constitutions of 1857 and 1917

Nigeria

Federal Republic of Nigeria constitution (1958)

Peru

Constitution of 1993

Philippines

1987 Constitution

Poland

The Little Constitution of 1992

Russia

Constitution of Russian Federation (1993)

Somalia

National Communications Act of March 2012

South Africa

South African Bill of Rights of the Constitution (1996)

South Korea

Constitution of 1948

Spain

Constitution of 1978

Sweden

Freedom of the Press Act of 1766

United States

Declaration of Independence (1776)

Is there another noteworthy written source from the past that mentions this right?

This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty.

Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.

Legal Codification

Is this right protected in the Constitutions of most countries today?

The right to free expression is upheld by most countries’ constitutions (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies.

Consequently, there are still several countries that restrict free expression in their laws. For example, in South Korea, The National Security Law prohibits sharing sympathies towards North Korea (Kolick, Alli; Dehague, Tyler; and Leick, Amber). Additionally, while Afghanistan’s constitution does protect freedom of expression, it does not firmly protect speech when related to “ ‘public spirit’, ‘security’, and ‘public interest’ ” (Ministry of Foreign Affairs - Islamic Republic of Afghanistan). India’s free expression laws likewise are not comprehensive, as the right to free press is not explicitly stated in the Indian Constitution (Kolick, Alli; Dehague, Tyler; and Leick, Ambe). Therefore, while most countries do have some form of free expression within their constitutions, not all free expression clauses clearly outline the rights of citizens; rather, many constitutions explicitly restrict forms of free expression.

Is it contained in the US Constitution?

The right to free expression is not stated verbatim in the United States constitution. Though, it is universally accepted to be covered by the First Amendment (American Civil Liberties Union). Furthermore, the First Amendment asserts, “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.” Specifically, the listed rights to free speech, press, assembly, and petition are broadly viewed as Americans’ rights to free expression. Though, the nature of free expression, as enshrined by the Constitution, has been heavily debated. Some believe that only political speech is protected by the First Amendment (Legal Infornation Institute, Cornell Law School). Others assert that the individual freedoms outlined by the First Amendment should not be grouped together as Americans’ general freedoms to expression. Rather, these individuals argue that the individual freedoms entitled by the First Amendment ought to be addressed as distinct rights (Bogen). Consequently, in 1799, John Hay, in criticizing the Sedition Act, argued that freedom of speech, as entitled by the First Amendment, protects all forms of expression. Specifically, using freedom of the press as an example, Hay asserts that the same degree of freedom is applied to each First Amendment right, stating “To ascertain what the "freedom of the press" is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.” Ultimately, Hay’s argument developed the belief in Americans’ general right to free expression, which is still commonly accepted today to be protected by the First Amendment

Has it been interpreted as being implicit in the US Constitution?

Given that freedom of expression is often used as a blanket term for the numerous rights enshrined by the First Amendment, free speech, press, petition, and association, its parameters are implicit. For example, while the First Amendment does assert the right to free speech, it does not go into detail about the nature or degree of free speech. For this reason, what counts as protected “expression” is implicit. Demonstrated by exceptions, summarized in "Are there any exceptions in American law to this right?", to the First Amendment, the implications of the right to free expression are often determined by the Supreme Court’s decisions. Furthermore, cases such as Schenk v. United States, Chaplinsky v. New Hampshire, Miller v. California, New York Times Company v. Sullivan, and Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, have created precedents making the parameters of free expression increasingly explicit, as each case demonstrates how certain forms of expression are or are not protected by the First Amendment.

Are there any exceptions in American law to this right?

Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio, which ruled speech could be prohibited if it was "directed at inciting or producing imminent lawless action" or was “likely to incite or produce such action.”

Additionally, there is a legal exception for “fighting words”, in that words that “would likely make the person to whom they are addressed commit an act of violence” are not shielded by the First Amendment. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.”

Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated.

Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing.

Lastly, commercial speech may be regulated in order to protect consumers. Furthermore, the standards for commercial speech regulation were created by Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, which created a four part test for determining whether or not the government could limit commercial speech. According to the court, commercial speech is may be regulated only if,

speech must concern lawful activity and not be misleading; 2. the asserted governmental interest must be substantial. If the first two parts are established, then it must also be determined that: 3. the regulation directly advances the governmental interest asserted; and 4. the regulation is not more extensive than is necessary to serve that interest.

Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.

Is this right enshrined in international and regional human rights treaties?

For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law. ___________________________________________________________________________________________________________________________________________________________

Multiple human rights regimes at both international and regional levels enshrine the universal freedom of expression in their frameworks, in accordance with the other fundamental values that these documents uphold. Although in international documents this freedom relates mostly to the unabridged ability of individuals to express their thoughts and opinions, it also protects media and press institutions that disseminate news and information throughout societies.

In the context of international human rights regimes, freedom of expression is guaranteed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In both documents, freedom of expression is found under Article 19. In the UDHR, the right is listed as such: “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.” (UN, 2014) Article 19 of the ICCPR is worded very similarly but includes greater specificity, as it explicitly lays out protected ways to consume and impart information, including “...orally, in writing or in print, in the form of art, or through any other media of [one’s] choice.” (OHCHR, 2014)

Regional human rights regimes also enshrine freedom of expression in a similar manner. The Organization of American States’ (OAS) Declaration of Principles on Freedom of Expression is composed of 13 articles that lay out protections of the freedom of expression and nuances of those protections in various contexts, including accessing information, censorship, communication freedoms, and privacy aspects. The American Declaration on the Rights and Duties of Man includes the freedom of expression in Article 4, with similar wording to Article 19 of the UDHR and the ICCPR. The African Charter on Human and Peoples’ Rights protects the right to “receive information,” and the right to “express and disseminate [one’s] opinions within the law.” (AU, 1986) This right is also established in the American Convention on Human Rights in Article 13 and is expanded by Article 14. Article 10 of the European Convention on Human Rights consists of two sections, the first echoing the wording of the UDHR and ICCPR, as well.

Most of the above documents enshrine press freedoms alongside and within the general freedom of expression. However, two more recent regional frameworks, the Amsterdam Recommendations and the Bishkek Declaration, work to specifically define and protect press freedoms in the context of ever-evolving manifestations of the media.

The Amsterdam Recommendations refer to press freedoms in light of the digitization of media and espouses that the freedom of expression be upheld regardless of the “...technical means... used to channel the work of journalists to the public…” (OSCE, Jun. 2003) This human rights regime reaffirms previous declarations made by the OSCE, UN, and OAS in 2001, which laid the foundation for ensuring universal, unlimited access to the Internet and digital frameworks. In light of the heightened possibilities afforded by digitization of media, the Amsterdam Recommendations are split into four focus areas: Access, Freedom of Expression, Education, and Professional Journalism.

The Access portion refers to facets of the Internet and its interaction with the freedom of press and expression - this document establishes the Internet as a tool that allows for a “...free media landscape…” to flourish and is thus essential to the public as well as to journalists. (OSCE, Jun. 2003) The Freedom of Expression section acknowledges that the vast degree of usefulness of the Internet allows for increased freedom of expression and access to information, but it is equally susceptible to misuse via criminal exploitation and illicit activity. This section ultimately asserts that freedom to spread and receive information is a basic human right and should be protected from any form of censorship or limitation. Prosecuting and regulating criminal content should therefore only focus on the content itself and not the Internet, which is only a vessel. (OSCE, Jun. 2003) The Education portion refers to fostering computer and Internet literacy, and setting up training tools in schools and for adults so that the role of the Internet is well understood in civil society. (OSCE, Jun. 2003) Finally, the Professional Journalism portion protects private forms of communication as they present a different way of disseminating information than “classic media,” and also maintains that evolving forms of journalism should require the same degree of protection as “classic media.” This section also calls for the creation of a set of standards for journalists to follow, intended to lay out the responsibilities of “professional journalism.” (OSCE, Jun. 2003)

The Bishkek Declaration is more related to protecting press freedoms from infringement by government bodies. Central to this human rights regime is the protection of the media’s right to preserve diversity of linguistic, cultural, and ethnic representation, and prohibits the dissemination of hate speech. The declaration also calls for the protection of the media’s role of holding government institutions and officials accountable to the public in both economic and political contexts. This provision is expanded by the fourth and fifth points, establishing the responsibilities of governments toward this goal - governments must ensure unlimited access to sources of public information for journalists of both state and non-state media apparatuses, and also must resolve any harassment of the press. The document also recognizes that journalists can face criminal charges for writing critical pieces about public officials or government institutions in some states party to the declaration. In order to prevent this, the declaration calls for the full decriminalization of libel and defamation, in accordance with the UN Human Rights Council’s proclamation that “the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” (Griffen p.7, 2017) The Bishkek Declaration also calls for the repealing of “insult laws that provide undue protection for public officials.” (OSCE, Sept. 2003) Civil libel, in turn, should not result in the imposition of excessive fines by courts on media institutions – the fine should be proportionate to the offense and not lead to bankruptcy or have a “chilling effect” on journalistic institutions and their functions. (OSCE, Sept. 2003)

The aforementioned international and regional human rights regimes act in conjunction with the Amsterdam Recommendations and Bishkek Declaration to define modern press freedoms, and thereby contribute to the preservation of this fundamental and intrinsic value.

Philosophical Origins

What have religious and philosophical traditions contributed to our understanding of this right?

Buddhism

The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism.

In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, & Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism.

In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).

In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe.

Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression.

Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.

Aristotelian thought

Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today.

Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001).

In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.

Ancient Chinese Philosophy

Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression.

On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression.

Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in "A New Interpretation of Chinese Taoist Philosophy", “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.

Early Modern Rationalism

The late seventeenth century was a period of great philosophical advancement. Falling roughly at the close of the Enlightenment movement, the late 1900s and early 1700s saw an expansion in the European discourse on rights and liberties within political society. While rationalists during this time period generally did not deal with specific freedoms of the citizens in their writings, writers like Leibniz and Spinoza do reveal a tendency in the early-modern rational tradition to consider the benefits of citizens’ unrestrained expression. Sources do not indicate that these philosophers were thinking of free expression in terms of right or liberty, but their writings nevertheless reveal shades of support for the concept. Leibniz was a prolific writer who produced a plethora of work spanning a wealth of topics, but some of his most important work relating to freedom and liberty occurred in the field of political philosophy. In his “Reflections on the Common Concept of Justice,” he explains his thoughts on justice within political society and the transfer of right between citizen and state. In response to Hobbes’ argument in ​Leviathan,​ Leibniz explains that he thinks it impossible for an individual to transfer all of their freedom unto a sovereign in exchange for membership and security within a state. “In the end,” he writes, “in spite of what Hobbes says, each one has retained his right and his liberty regardless of the transfer to the state, and this transfer will be provisional and limited, that is, it will take place to the degree that we believe our safety is involved” (Leibniz, 573). This does not deal specifically with the right to liberty of expression, but it certainly implies that there are certain freedoms that the citizen retains within the context of wider society. Coupled with his definition of justice as “a constant will to act in such a way that no person has reason to complain of us,” it is not unreasonable to conclude that freedom of expression could be included in the set of liberties that Leibniz believes are not transferred to the sovereign in political society. (Leibniz, 566).

Of course, Leibniz never directly argues in favor of the protection of the right to freedom of expression, so it is unclear whether he viewed it as an inalienable, natural right. The idea that certain forms of expression could potentially give a person “reason to complain” of another was certainly familiar to early-modern Europeans; defamation and libel laws had existed in England since the reign of Edward I (Statutes of the Realm). This means that Leibniz would have understood how certain forms of expression could be harmful to political society, and it is possible that he would have viewed certain forms of expression as unjust and therefore unprotected by natural right. Ultimately, Leibniz would have based his views on freedom of expression in his classification of the right itself. If he thought of it as an intrinsic natural right which citizens were incapable of giving up, then he likely would have viewed state restrictions on speech or demonstration as inherently impermissible. Unfortunately, Leibniz does not address specific rights, such as that to freedom of expression, within his discourse.

Spinoza, on the other hand, deals somewhat more specifically with the freedom of expression, though he also refrains from advocating for it outright. Spinoza’s support for free expression within society stems from his belief that the state can never truly force belief upon its subjects. He does not address freedom of thought and expression; he sees them as inevitable. In his ​Theological-Political Treatise, h​ e discusses the rights and liberties that the individual surrenders to the state when he or she enters into political society under the sovereign. When he considers the state’s ability to impose belief upon its citizens, he concludes that “the individual justly cedes the right of free action, though not of free reason and judgment; no one can act against the authorities without danger to the state, though his feelings and judgment may be at variance therewith; he may even speak against them, provided that he does so from rational conviction” (Spinoza, 195). Elsewhere in the ​Treatise,​ he writes that:

“I have thus shown:—I.That it is impossible to deprive men of the liberty of saying what they think. II.That such liberty can be conceded to every man without injury to the rights and authority of the sovereign power, and that every man may retain it without injury to such rights, provided that he does not presume upon it to the extent of introducing any new rights into the state, or acting in any way contrary to the existing laws.” (Spinoza, 199)

Like Leibniz, Spinoza does not take issue with an individual’s freedom of belief, nor does he see any reason that a citizen’s right to express themself should be restricted. It is important to note that both thinkers limit the citizen’s liberty, whether it relates to speech or not, to action that does not break any of the sovereign’s laws. Neither philosopher believed that a sovereign’s word was always morally just, but both nevertheless took issue with a citizen’s blatant violation of the law.

Britain., Great. “The Statutes of the Realm : Printed by Command of His Majesty King George the Third, in Pursuance of an Address of the House of Commons of Great Britain. From V.1.” ​HathiTrust​, babel.hathitrust.org/cgi/pt?id=pst.000017915496.

Johns, Christopher. “The Grounds of Right and Obligation in Leibniz and Hobbes.” ​The Review of Metaphysics,​ vol. 62, no. 3, 2009, pp. 551–574. ​JSTOR​, www.jstor.org/stable/40387825. Accessed 30 July 2020.

“Reflections on the Common Concept of Justice (1702[?]).” ​Philosophical Papers and Letters​, by Gottfried Wilhelm Leibniz and Leroy E. Loemker, Kluwer Academic, 1989.

Spinoza, Benedictus de, and R. H. M. Elwes. ​The Chief Works of Benedict De Spinoza​. G. Bell, 1891, oll resources.s3.amazonaws.com/titles/1710/Spinoza_1321.01_EBk_v6.0.pdf.

Reformation Christianity

Reformation Christianity: Freedom of Expression The Protestant Reformation of the sixteenth and seventeenth centuries sparked new discussions about mankind’s freedom of the conscience, belief, and to some extent, expression. Reformers from all over Europe produced writings on these freedoms, but they generally thought about these rights as they related to questions of theology. As a result, Reformation discourse focused more on a Christian’s freedom of conscience than on the citizen’s right to express their beliefs. The right to freedom of expression was explored, but much less broadly. English philosophers Thomas More and Thomas Wilson are two of the only Reformation-era thinkers to directly address the right, but their work influenced England’s political development regarding free speech over the next several centuries. Wilson’s support for the Reformation guided his views on the necessity of free expression, while More’s views were less religiously-motivated. More, who would eventually be martyred for his refusal to renounce Catholicism, made his most significant contribution to the English discourse on the right to free expression before the Anglican Reformation even began. In 1523, eleven years before English King Henry VIII announced a split from the Catholic Church, his newly-appointed Speaker of the House of Commons made a petition for freedom of speech within Parliament. The Speaker was none other than Sir Thomas More, who would later oppose Henry’s Anglican Reformation at the cost of his own life. He argued that Parliament could not be expected to form effective policy if its members were not allowed to speak honestly, saying that “it may therefore like your most abundant Grace, our most benign and godly King, to give to all your Commons here assembled your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience, and boldly in everything incident among us to declare his advice, and

whatsoever happen any man to say” (More, 1523). More’s insistence on the value of free speech within a legislative body is far removed from advancing the citizen’s right to freedom of expression, but it reveals that English Reformation-era thinkers were beginning to reconsider the permissibility of magisterial censorship as early as the 1520s. While More was ultimately executed for remaining loyal to the Catholic Church during the Anglican Reformation, his conviction that one ought to be able to speak their mind without fear of legal retribution endured.

About twenty years after More’s speech, Thomas Wilson made a similar statement about freedom of expression in his 1553 work, ​The Arte of Rhetorique.​ Wilson was an English writer whose Protestant views led Catholic Queen Mary I of England to summon him out of his mid-sixteenth century exile in Italy to stand trial for heresy, and his Protestant tendencies seem to have guided his thoughts on freedom and liberty. In an introduction to ​The Arte of Rhetorique, George Herbert Mair asserts that “​there is no mistaking [Wilson’s] zeal for the Reformation. It shines through everything he wrote, and the reader of the Logike and the [Rhetorique] will have no cause to wonder at the papal persecution of his works” (Mair, 1908).​ Perhaps this avid support for the Reformation movement influenced his thoughts on freedom, not only of the conscience but also of speech itself. A passage from ​The Arte​ states that ​“Freeness of speech is when we speak boldly and without fear, even to the proudest of them, whatsoever we please or have list to speak. ​Diogenes,​ herein did excell..this world wants such as he was” (Wilson, 1553). Like More, Wilson understood the value of free speech. Though he does not speak in this passage of a citizen’s right to freedom of expression, he was at least aware of the potential benefits that this liberty could have within political society. In fact, according to a 1981 article in The Sixteenth Century Journal​, Wilson advanced the discourse on freedom of speech by

“claiming that freedom of speech is a generally acknowledged duty to be exercised by anyone, not restricted to parliamentary debate” (Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics”).

Both More and Wilson made important contributions to the Reformation-era discourse on freedom of expression, but neither would live to see England’s official legislation of the right to freedom of speech within Parliamentary debate. This only occurred after the Glorious Revolution, in which William, Prince of Orange and newly crowned King of England, signed the English Bill of Rights in 1689. ​The Bill reflected England’s newfound stability within the European religious community by declaring the country a “Protestant Kingdom” and forbidding any Catholic from taking the throne or marrying into the royal family (English Bill of Rights). ​It also became the first early-modern document to legislate freedom of expression when its text guaranteed ​“that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (English Bill of Rights). The document went into effect near the end of the Anglican Reformation movement, over a century after Wilson’s death, so it is unclear to what extent he or More influenced its creation. While ​The Arte of Rhetorique w​ as known in academic circles, its call for freedom of speech was not fully answered by the Bill, which only guaranteed that right within Parliamentary debate. The Bill’s text more closely resembles More’s 1523 speech, which specifically refers to freedom of speech within Parliamentary debate. Scholarship has yet to establish a direct link between the Bill and either of the two documents, but it is nevertheless important to note the importance of both writers’ work in advancing English discourse on the right to freedom of expression.

Sources Used Avalon Project - English Bill of Rights 1689,​ avalon.law.yale.edu/17th_century/england.asp. More, Thomas. “Thomas More Petition for Free Speech, 1523.” ​The Center for Thomas More Studies​, www.thomasmorestudies.org/docs/Thomas%20More%20Petition%20for%20Free%20Sp eech.pdf. Parkin-Speer, Diane. “Freedom of Speech in Sixteenth Century English Rhetorics.” ​The Sixteenth Century Journal​, vol. 12, no. 3, 1981, pp. 65–72. ​JSTOR​. Wilson, Thomas. “The Arte of Rhetorique, with ‘Introduction.’” Edited by George Herbert Mair, The Art of Rhetoric,​ Renascence Editions, www.luminarium.org/renascence-editions/arte/arte.htm.

Hobbesian Thought

Hobbes never advocates for a right to free expression. Rather, he argues that a commonwealth should censor opinions and publications promoting doctrine that undermines its wellbeing. He states that it is “annexed to the Soveraignty, to be Judge of what Opinions and Doctrines are averse, and what conducing to Peace; and consequently, on what occasions, how farre, and what, men are to be trusted withall, in speaking to Multitudes of people; and who shall examine the Doctrines of all bookes before they be published. For the Actions of men proceed from their Opinions; and in the wel governing of Opinions, consisteth the well governing of mens Actions, in order to their Peace, and Concord” (202). Despite Hobbes’ often totalitarian views, Hobbes advocates at least some liberty of expression, religion, and association. Hobbes only supported restrictions on liberty when it would have a tangible benefit to the state. In ​Elements of Law​, he argues “that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth” (1640, 9-4). In ​Behemoth,​ he even argues that “​suppression of doctrines does but unite and exasperate, that is, increase both the malice and power of them that have already believed them” (Hobbes 1681). Although Hobbes’ preference is liberty, he does not seem to have a particularly high standard for classifying ideas as seditious. He considered Christian views that violating conscience is a sin and that sanctity and faith are achieved through relations with the supernatural, not reason, to be seditious (Curley 1). One can see how these views would hurt a state - the idea about violating conscience could promote disobedience. Still, these views are nowhere near problematic to meet the standards for censorship employed by most modern Western governments. Leviathan:​ ​https://www.fulltextarchive.com/pdfs/Leviathan.pdf Curley: https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf Elements of Law:​ ​http://library.um.edu.mo/ebooks/b13602317.pdf Behemoth: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dialogue-behemoth-rhetoric

Lockean Thought/English Empiricism

Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In ​A Letter​, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).

A Letter Concerning Toleration:​ https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf

Daniel: https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1154&context=student_scholarship

Physiocrats

Although Physiocrats stress the importance of economic freedom, critics place them within the realm of enlightened despotism. Toqueville classifies the physiocrats as having “little liking for political freedom” (Cavanaugh 38). Physiocrats believed that a central authority figure was needed to create prosperity by following the principles of natural law (Cavanaugh 42). Most physiocrats’ research examines their economic stances, in fact, it overwhelmingly focuses on their economic theories. However, using their economic perspectives, one can extrapolate their beliefs on general rights and liberties. The physiocrats fundamentally believe in laissez faire—that the economy was over-regulated and taxation was overwhelmingly indirect. They believed that the government should take a hands-off economic approach and let the market regulate itself. This can be expanded into their views of personal rights and liberties. The physiocrats believed in the natural, inherent rights of man and believe these rights should not be regulated except in the instance where man infringes on the rights of others (Higgs 1897). The physiocrats do not believe that men do not compromise on rights in any instance, including when they enter into a social contract (Higgs 1897). Thus, even the state must be subservient to the rights of man. This philosophy is based on the idea of society collectively benefitting or losing based on the actions of individuals (Higgs 1897). Men can maintain all of their rights, with the understanding that an infringement on another individual’s rights would be collectively bad for society in which they both reside (Higgs 1897).

Rousseau's Thought

In his First Discourse, Rousseau elaborates on the problems of moral inequality that he believes have arisen out of unrestricted expression by elites in art, science, and philosophy, determining that “the pernicious inequality created among men by the distinction of talents and the debasement of virtues” gives rise to humanity’s moral decay. Elite control over what information is deemed important in society “corrupts our judgment” and teaches children “everything but their duty” to their families and communities (The Essential Rousseau 1974, p. 222). At the end of the Discourse, Rousseau encourages readers to deny elite priorities in favor of an emphasis on local, communal, and individual needs:

“Let us not pursue a reputation which would escape us and which, in the present state of things, would never repay us for what it had cost us, even if we were all qualified to obtain it. Why should we seek our happiness in the opinion of our fellow men if we can find it in ourselves? Let us leave to others the task of instructing peoples in their duties, and limit ourselves to fulfilling our own; if we have that, we have all the knowledge we need” (p. 227).

Similarly, in The Social Contract, Rousseau offers a political system to address part of this problem, outlining that the institution of his ideal body politic depends upon the “complete surrender of each associate, with all his rights, to the political community” and the allocation of each person “and all his power...under the supreme control of the general will” (p. 17). While Rousseau posits that ensures equal political conditions for all and disincentivizes decisions that do not benefit the whole community, such a system also includes harsh restrictions on individual freedom of expression as it is conventionally understood today.

While Rousseau endorses open debate and dissent during the lawmaking process, censorship plays a prominent role in the enforcement of newly-created laws to more easily keep subjects content and make legislation better reflect the general will: “although the law does not regulate morals, it is legislation that gives birth to them…censorship can be useful for preserving morals, but never for restoring them” (p. 105). To Rousseau, the majoritarian nature of the sovereign “always tends toward the public good” and leaves little opportunity for dissent in the political process after laws have been passed (p. 26). The role of the “government” in Rousseau’s thought also imposes coercive restrictions on individual expression. In carrying out its responsibilities as an executive force, Rousseau believes that the government ought to compel individuals to abide by the decisions of the general will and suppress those who speak out against it–a responsibility Rousseau recognizes as vital to the continual existence of the sovereign (p. 52).

Censorship is also a prominent element of the responsibilities of Rousseau’s lawgiver, the societal first mover who ought to “concern himself” with the “morals, customs...and public opinion” of a people in secret to maintain social order (p. 47). While debate and dissent concerning religious speculation ought to be tolerated, the moral authority outlined by the lawgiver must go unquestioned, as “open dissent from these opinions can be understood as at best a declaration of independence from the community and at worst a declaration of war against it” (Kelly 1997, 1241).

Suppression of the minority opinion in Rousseauian society severely encroaches upon individual autonomy and the incentivization of censorship immediately following the legislative process further suppresses the ability for individual thought to exist outside of what is deemed legitimate by the legislative assembly.

Benthamite Utilitarianism

To Bentham, the purpose of free expression, especially press, is to identify and censure government abuses, which Bentham believed would have more positive than negative consequences. Like other liberties in Bentham’s thought, it is an instrumental right, not an intrinsic right (Niesen 2019, 4). He worried that a chilling effect would prevent the press from serving its purpose, and he opposed censoring of “bad sentiments” (something Blackstone supported) because he did not trust society’s ability to identify them. Bentham not only advocated for the protection of true statements, but of false ones, provided they were not “‘groundless’ and made with ‘wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Niesen 5). A “wilful mendacity” standard resembles the “actual malice” standard of contemporary American jurisprudence on libel of a public figure.

Niesen: https://www.scienceopen.com/document_file/75aeb0a3-96c6-44d5-9994-0e9bb0214657/Science Open/jbs20180001.pdf

Millian Utilitarianism

John Stuart Mill elaborates on utilitarian ideas of using free speech in furtherance of better governance; he argued that all opinions should be allowed because public discourse will separate good ideas from bad ones (Niesen 7). This is known as the “marketplace of ideas” argument. Under this theory, even false beliefs have their place (Mill believed opinions could have truth or falsity), because they can lead public discourse to discover truth (Niesen 9). Mill makes little distinction between opinion and fact because they complement each other (Niesen 10). In Law of Libel, Mill argues that finding true ideas requires an understanding of facts (Niesen 12). Mill would not guarantee the right to voice untrue facts (Niesen 12). There is scholarly debate as to whether there is room in Mill’s thought for governments to limit the expression of true facts in certain situations. Niesen cites a thought experiment put forth by Jonathan Riley, where someone publishes pornographic material of an ex-lover, an act which conflicts with the other party’s right to self-determination. Niesen argues that this could plausibly be considered an expression of fact whose purpose is not to aid in the formation of public opinion, and a Millian government may ban this form of speech.

US courts, including the Supreme Court, have invoked the marketplace of ideas theory hundreds of times over the past century (Schultz & Hudson 2017). For a recent example, in 2017, the Supreme Court invalidated a federal law banning offensive terms in trademarks, drawing on the marketplace of ideas theory in its unanimous opinion (Hudson 2017).

Niesen: https://www.scienceopen.com/document_file/75aeb0a3-96c6-44d5-9994-0e9bb0214657/Science Open/jbs20180001.pdf

Schultz and Hudson: ​https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas

Hudson: ​https://mtsu.edu/first-amendment/article/1528/matal-v-tam

Marxism

Free expression is not a central tenet of Marxism. However, Marx’s early writings display a distaste for censorship. He once wrote that “the real, radical cure for the censorship would be its abolition” (Marx 1842). Though he strays from this topic in his later writing, he never repudiates his earlier opinions (Heinze 2018). Heinze argues that the idea that Marxism is inherently anti-free-speech is a misconception (regardless of how some specific Marxist regimes have operated). Marx rejected some rights - property rights - because they served the interests of the wealthy and powerful. But free speech is different because it does not serve an underlying interest that Marx opposed.

Marx 1842: ​https://www.marxists.org/archive/marx/works/1842/02/10.htm

Heinze 2018: ​http://humanityjournal.org/blog/karl-marxs-theory-of-free-speech-part-1/#_ftn5

Feminist Thought

Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledge that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).

What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?

The phrase “living constitutionalism” was first coined in Howard Lee McBain’s 1927 book The Living Constitution (Solum 1256, 2019). Although the theory was only beginning to form, the book provided the foundations of living constitutionalism that we know today: “The following passage illustrates McBain’s notion of a living constitution:

‘A word’, says Mr. Justice Holmes, ‘is the skin of a living thought.’ As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase” (Solum, 2019).

Ultimately, the fundamentals of living constitutionalism rely upon the laws of the Constitution being evolutionary, able to change over time, and adaptable to new circumstances and times without the difficult and time-consuming formal amendment process (Strauss, 2010). In a constantly changing world with advancements in technology, changes in international, diplomatic, and social relations, as well as economic evolution, the Constitution does need to be flexible to a certain degree (Strauss, 2010). However, the idea of a Constitution that constantly changes over time cannot entirely be; “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution.” (Strauss, 2010). Scholar James E. Fleming goes on to explain that:

“Strauss describes common-law constitutional interpretation as an evolving process of developing precedent and tradition, coupled with judgments of fairness and good policy.49 So far, so good. But some of his formulations make it sound like judges engaged in this process make judgments of fairness and good policy as if they were simply making pragmatic judgments rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate the abstract moral and political principles to which the Constitution commits us – or judgments about how best to realize our aspirational principles. He acknowledges this point elsewhere in the book, e.g., where he speaks of common-law courts as relying on “general principles derived from precedents and on its judgments about good policy.” Likewise, he refers to “a living constitution that exists apart from the text and the original understandings – that exists in, for example, the principles that protect freedom of expression and those of Brown v. Board of Education.”51 In short, we should conceive the Constitution as a framework or scheme of abstract aspirational principles that we elaborate through common-law constitutional interpretation” (Fleming 1178, 2011).

Regarding specifically freedom of expression in the First Amendment, the principles of freedom of expression that we know today did not become established in law until over a century after the Constitutions ratification (Strauss 52, 2010). The views of the drafters of the First Amendment drafters is unclear according to the wording of the rights, and even further “There is, in fact, good evidence that the people responsible for adding the First Amendment to the Constitution would have been comfortable with forms of suppression that would be anathema today… The central features of First Amendment law were hammered out in fits and starts, in a series of judicial decision and extrajudicial developments, over the course of the twentieth century” (Strauss 52-53, 2010).

The components within the First Amendment that protect the freedom of expression can be broken down into two main categories. First, the 1964 case of New York Times v. Sullivan helped to solidify the protection of the people’s right to criticize the government. The case was the first to place limitations upon the government’s ability to fine individuals who defame public officials (Strauss 53-54, 2010). Then five years later, in Bradenburg v. Ohio, it was decided by the Court that you, as an individual, can exercise your right to freedom of speech and expression by going as far as advocating for violence and/or use of force legally “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (Strauss 54, 2010). Along the same vein, in the 1971 case of New York Times co. v. United States, the Court decided that the Pentagon papers (top secret government documents that revealed diplomatic secrets and detailed American involvement in the Vietnam war) were legally published by the New York Times seeing as the publication did not “surely result in direct, immediate, or irreparable damage to our Nation or its people” (Strauss 54, 2010). All these cases came together to underline the fact the people have the right to broad freedom of speech and expression. The government cannot infringe upon this right unless there is clear evidence that suggests other laws will be broken as a result of the exercising of the right; this is a very different image than what the drafters of the First Amendment presumably pictured.

Second, within living constitutionalism, under the protection of the right to freedom of expression, there is a hierarchy in terms of which circumstances of exercising the right require the most protection from the Constitution and which the Constitution does not protect at all: “Certain values of low-value speech should receive less or no constitutional protection” (Strauss 55, 2010). Low-value speech, or relatively unimportant speech, includes instances of “obscenity, commercial speech, false and defamatory statements, perjury, blackmail, threats, criminal solicitation…” (Strauss 55, 2010). In lawmaking, laws must not infringe upon one’s rights to freedom of high-value speech, or relatively more important speech such as criticism of the government and public debate.

All this is in effect now because of the courts’ interpretations of the Constitution under living constitutionalism. The application of the Constitution now is very different from its first ratification. For example, eventually the Bill of Rights extended to states, but for a hundred years they did not extend to the states, and ultimately, the states were able to restrict freedom of expression freely and legally (Strauss 56, 2010). Also the focus of lawmaking has changed: “When the framers adopted the First Amendment, they were concerned with the balance of power between the federal government and the states and not just about protecting free expression in general. The entire focus of the debate over the First Amendment was on the federal government and on making clear that the Constitution’s grants of various powers to Congress did not include the power to restrict free speech or the press” (Strauss 59, 2010). The states, seeing as they were viewed as much more independent then, and federalism was much weaker, were seeking to protect their territories from an overly-powerful federal government and possible restrictions that could ensue. Ultimately, living constitutionalism has permitted for the practice of freedom of expression that we have today while still trying to maintain the central principles and themes of the American government granted to it by the Constitution.

Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).

Americans are often proud of their nation’s commitment to free speech; according to US jurisprudence, content-based restrictions on speech are generally unconstitutional unless they directly prevent criminality or public danger. Americans also tend to venerate the founding fathers, learning from a young age that the colonies courageously overthrew the British tyrants. Although free speech is enshrined in the Bill of Rights, the unique status that American courts have afforded free expression has little basis in originalism. Rather, such strong free-speech protection is a product of living-constitution theory and America’s modern notions of civil libertarianism. Originalist generally understand the First Amendment’s primary purpose as protecting political speech - not the broad speech protections we observe today. Justice Scalia, who was perhaps the country’s most prominent originalist, wrote the following sentence in his opinion of McConnell v. FEC​: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Many key free-expression cases, including arguably the two most important in establishing a standard for content-based restrictions, did not draw on originalist thought. The Supreme Court’s opinion in ​Schenck v. US​ (1919), which established the clear and present danger test, draws on no founding-era understanding of the Constitution to defend this standard. Ditto for ​Brandenberg v. Ohio​ (1969), where the court replaced clear and present danger with the more-stringent imminent lawless action test. Obviously, there have been many other important free-speech cases. Still, the lack of originalist insight on such important cases is telling. Modern free-expression jurisprudence demonstrates more fidelity to living constitution theory than to originalism. As the University of Chicago’s David A. Strauss articulated,​ “a living Constitution is one that evolves, changes over time, and adapts to new circumstances” (2010). As such, free-speech interpretation can shift to meet the needs of a changing nation​ According to SMU’s Christopher Wolfe, seditious speech was accepted early in the nation’s history as an exception to the First Amendment because the nation’s stability was not a given then as it is today (2019, 536-7). Today, however, courts can reevaluate anti-government speech in light of the fact that the US is a global superpower. There is even some evidence that the Supreme Court takes public opinion into consideration (Epstein and Martin 1). This might help explain why the court has moved toward broad free-speech protections in a country where free speech is a huge aspect of political culture (although this begs the question of whether causation occurs in the opposite direction). School-speech cases exemplify the different First-Amendment Jurisprudence produced by living-constitution and originalist theory. Justice Thomas issued a strikingly originalist opinion in ​Morse v. Frederick​ (2007). Thomas analyzed the history of US public schools, which proliferated in the early 1800s (Thomas 2007, 2). He argues that early public schools “were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled ìa core of common valuesî in students and taught them self-control.” He concludes that because students in this area were not seen as having First-Amendment rights, neither are today’s. Meanwhile, in the court’s majority opinion in the landmark case ​Tinker v. Des Moines ​(1969), the court cited the following passage from ​Shelton v. Tucker ​(1960): “​The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection." Here, it is argued that the First Amendment should protect schools’ current and future function as a breeding ground for ideas, regardless of whether such a function existed early in our nation’s history.

References Wolfe: ​https://scholar.smu.edu/cgi/viewcontent.cgi?article=4807&context=smulr

Fallone: ​https://law.marquette.edu/facultyblog/2018/12/on-originalism-and-the-first-amendment/ Dailey: https://open.bu.edu/bitstream/handle/2144/24083/Dailey_bu_0017N_12912.pdf?sequence=5 McConnell v. FEC:​ ​ttps://www.law.cornell.edu/supct/html/02-1674.ZX.html

Schenck v. US​: ​https://www.law.cornell.edu/supremecourt/text/249/47

Brandenburg v. Ohio​: ​https://www.law.cornell.edu/supremecourt/text/395/444

Strauss: ​https://www.law.uchicago.edu/news/living-constitution

Epstein and Martin: ​http://epstein.wustl.edu/research/supctEMPubOp.pdf

Morse v. Frederick​: ​https://www.mtsu.edu/first-amendment/article/690/morse-v-frederick

Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, James E. Fleming, 1178, Boston University School of Law, 2011 Boston.

Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, Lawrence B. Solum, 1256, Northwestern University Law Review, 2019 Evanston.

The Living Constitution, David Strauss, 52-59, Oxford University Press, 2010 Oxford.

The Living Constitution, David Strauss, The University of Chicago Law School, 2010 Chicago.

Culture and Politics

Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?

The right to freedom of expression is not necessarily qualified as a protected human right in each country or sovereign government. Rather, it is a global human right, as stated in Act 19 of the Universal Declaration of Human Rights; “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas through any media and regardless of frontiers.” (Civic, 1997, pg. 129). Within this declaration, a few key factors are revealed that are related to how the freedom of expression is exercised as a legally recognized right. First, expression is acknowledged as being equal to opinions; they are both very imperative when it comes to human rights and the exercise of freedom of expression. Without the acknowledgment of the inherent significance of freedom of expression in a group context or collective capacity, such as protections under the Constitution, the full exercise of the right will not be achieved without an elevated form of protection placed on it. “Therefore, naked freedom of expression, without some common sense or good community sense infused into it, ultimately will fail to protect the individual as a member of the community, by its total disregard for the needs of the society… Thus, while freedom of expression is essential to human dignity, additionally, for the ultimate good of the individual as a member of society, such freedom must be exercised responsibly and with a recognition of the integral relationship the autonomous self has with the greater society.” (Civic, 1997, pg.143). Although many different governments and nations recognize the significance of freedom of expression, they may not agree with the outcome of fully exercising this right for all citizens. Along those lines, when protections for freedom of expression are not present within a country or society, the full capacity for citizens to freely express their ideas and thoughts in an individual or community context will subsequently be stifled. The difference between protections of ‘freedom of expression’ and ‘freedom of speech’ is determined by the way that somebody voices or expresses an idea or opinion. Protections under the freedom of speech may be determined by the words themselves that are used, but the expression is conveyed through action, and moreover what a person is trying to show with that action. “The terms ‘expression’ and ‘action’ are functional ones, rooted in the fundamental character of a system of free expression and in the factors necessary to maintain its effective operation. Hence it is clear that the term ‘expression’ must include more than the mere utterance of words or other forms of communication. It must embrace a surrounding area of conduct closely related to the making of the utterance or necessary to make it effective.” (Emerson, 1964, pg. 24-25). Thomas Scanlon analyzed the theoretical significance of how freedom of expression is positioned between protected acts and the consequences of exercising this right. “The most common defense of the doctrine of freedom of expression is a consequential one. This may take the form of arguing with respect to a certain class of acts, e.g., acts of speech, that the good consequences of allowing such acts to go unrestricted outweigh the bad. Alternatively, the boundaries of the class of protected acts may themselves be defined by balancing good consequences against bad, the question of whether a certain species of acts belong to the private genus being decided in many is not all cases just by asking whether its inclusion would, on the whole, lead to more good consequences than bad.” (Scanlon, 1972, pg. 204-5). Within this analysis, the reflection of the significance of intention comes to light, where there is negative or malicious intent, protections remain absent under freedom of expression. One cannot use freedom of expression to instill violence, or suppression, but rather as a way to exude an opinion or idea that does not push these limitations under legal precedent. “However, since acts of expression can be both violent and arbitrarily destructive, it seems unlikely that anyone would maintain that as a class they were immune from legal restrictions. Thus the class of protected acts must be some proper subset of this class. It is sometimes held that the relevant subclass consists of those acts of expression which are instances of ‘speech’ as ‘opposed to action’.” (Scanlon, 1972, pg. 207). Freedom of speech differs inherently from the freedom of expression based on an action directive, a person can say something that goes against the government’s prerogative and not face legal consequences, but upon acting to overthrow or dismantle that government, the protection of expression does not extend to ‘fighting’ actions or malicious acts. This theorizing under the freedom of expression justly points out the differences between American protections of expression under democracy, versus a more autocratic regime that aligns itself with dictatorships or communist ideologies. For example, in the People’s Republic of China, a socialist democracy under the legal definition, the government chooses to remain neutral upon expression protections unless they conflict with the individualistic ideology of communal support. “The Communist perspective on free speech, by contrast, assigns absolute priority to the well-being of the community, and in so doing, sacrifices individual freedom of expression.” (Civic, 1997, pg. 127). Under the People’s Republic of China’s legal provisions, freedom of expression is intertwined with freedom of speech. “Speech and other forms of expression must be internally, as well as externally, restrained to serve all of the people [under the ideology of Communism]…Thus, the Chinese perception of free speech in particular, and human rights in general, is propelled by Communist ideology which emphasizes the interests of the community at the expense of individual interests. Finally, the ‘rights’ of the individual are defined relative to his duties to the community, and are subjected to qualification, restriction, and repression for community interests, as defined by the Communist Party elite.” (Civic, 1997, pg. 128). The gray area that is ‘freedom of expression’ within the ideology of Communism conflicts with the obvious reality of actually having protections of freedom of expression. Where there is no protection, there is a lack of freedom to act upon an idea or opinion. Although the freedom of expression is distinguishable from the freedom of speech, they are communally intertwined under the Communist ideology. Freedom of expression must serve to fit the relative overall needs of the community in the PRC through their freedom of speech, otherwise, it does not qualify legally as protection of freedom of expression.

References:

Civic, Melanne Andromecca. "Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection within All Nations and across All Borders." In Hybrid, vol. 4, p. 117. 1997 Emerson, Thomas I. "Freedom of Association and Freedom of Expression." The Yale Law Journal 74, no. 1 (1964): 1-35. Scanlon, Thomas. "A theory of freedom of expression." Philosophy & Public Affairs (1972): 204-226

Does public polling reveal insights about the right as experienced in different countries?

According to Pew Research, majorities in Australia, Turkey, the Philippines, Ukraine, South Africa and Nigeria report that it is important to have free press, an essential element of freedom of expression. Consequently, freedom of the press is only considered important by less than half of adults in South Korea, Japan, Israel, Indonesia, Russia, India, Tunisia and Lebanon, revealing these societies possibly place less of an emphasis on freedom of expression. Furthermore, Pew notes that despite the fact that freedom of the press has declined since 2015, support for freedom of the press has overall increased. This demonstrates that individuals value freedom of expression greater when it becomes limited. Additionally, Pew presents that people with less education and people with popular views are less likely to assert freedom of the press to be important.

Focusing on the United States, a Cato Institute study showed 58% of Americans felt that the current political climate keeps them from expressing themselves. Within this statistic, 53% of Democrats say they do not need to censor themselves in comparison to 27% of Republicans and 42% of Independents. This demonstrates that among Americans, Republicans particularly feel their right to free expression is limited by certain social and political norms, as they feel the need to restrict their speech. In regards to hate speech, despite the fact that 79% of Americans find it “morally unacceptable”, the Cato study reveals 59% of Americans believe it should be allowed in the public. Analyzing these numbers, the study claims, “the public appears to distinguish between allowing offensive speech and endorsing it.” Additionally, the study asserts that 66% of Americans believe colleges need to do more to teach Americans about the value of free speech, emphasizing that Americans highly value freedom of expression. Looking to college campuses, a 2017 Gallup poll found that 61% of college students strongly agreed that their campus climate prevents people from saying the things they believe. This was up seven percentage points from 2016, when Gallup previously surveyed students. A reversal from 2016, Democrats and Independents were more likely than Republican students to believe their college environment limited their ability to speak freely. Lastly, the study found that a smaller majority of students polled preferred a campus where all speech was allowed, demonstrating that students' value of free speech on campus has declined.

An additional Pew study found that globally, a median of 62% of individuals say their country protects individuals freedom of expression. Furthermore, the study found that individuals in advanced countries were more likely to report that their country supported freedom of expression than individuals in emerging economies. Brazil, Spain, Argentina, Italy and Mexico reported specifically low numbers of individuals who felt their country supported freedom of expression. In each country, more than 50% of surveyed individuals stated they did not agree with the statement that their country supports freedom of expression. Specifically, Brazil reported very low numbers for freedom of expression, 39% saying their country does not support free expression at all. Within Europe, individuals in countries with favorable populist parties, such as Sweden, were additionally less likely to report that freedom of expression was protected by their government.

Conflicts with other Rights

Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?

Rights to privacy often conflict with the right to free expression. Furthermore, noted by Duke University Law Professor George Christie, often in Europe, speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). Though, Christie argues, this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).

Explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression.

Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression.

In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action" or was “likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.

Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?

The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997).

A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015).

As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace.

What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?

In 1919, Justice Holmes, in his dissent regarding the case of Abrams v. United States which saw the arrest of Russian immigrants convicted for handing out anti-war leaflets in New York City, stated that “the right to freedom of expression is at the very foundation of our constitutional theory. The expression of competing ideas in the marketplace of ideas is the best means of discovering the truth.” (Civic 119, 1997). Holmes advocated that the truth is at the “foundation of pursuit of the ultimate good, and pursuit of the ultimate good is the theoretical framework of the Constitution. Therefore, through free expression and the search for the truth, the ‘purpose’ of American liberty and democracy is realized” (Civic 120, 1997).

Almost 20 years later, Justice Benjamin N. Cardozo wrote in the majority opinion of the 1937 case of Palko v. Connecticut (which questioned whether Palko’s second conviction of a crime violated the Fifth Amendment’s protection against double jeopardy) the first explicit hierarchal ordering of human rights (Pacelle Jr.). The verdict of this case caused to Cardozo write that “some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right” (Oyez 2020). Cardozo argued further that certain fundamental rights, including the rights to freedom of speech, religion, and press were the “very essence of a scheme of ordered liberty”(Pacelle Jr., 2020). The next year, Justice Harlan Fiske Stone argued in Footnote 4 of the majority opinion in United States v. Carolene Products that the Court should allow civil and individual rights to occupy a “preferred position” when dealing with economic disputes that also affect fundamental rights (Pacelle Jr., 2020).

Ultimately, from these Supreme Court rulings, one can gather that freedom of expression is a fundamental right that “also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the powers that be to account, plays a vital role in the healthy development process of any society” (Index on Censorship, 2013). As Amartya Sen writes in his book “Development as Freedom,” access to the freedom of expression is a necessity in the development process of a society and is a developmental goal of its own. The freedom is “both the primary end and the principal means of development” (Index on Censorship, 2013).

How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?

The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020).

Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009).

The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard.

Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009).

Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because:

“Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991).

From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time.

Limitations / Restrictions

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

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.

Under American jurisprudence, what permissible exceptions exist?

Clear and Present Danger: As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre.

Fighting Words: In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul).

O’Brien Test: In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest.

Speech in schools: In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use.

Imminent Lawless Action: In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts.

Obscenity: The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.

Libel: Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988) (Nott).

Intellectual property: For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers.

Unlawful assembly: Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.

Under international human rights laws, what permissible exceptions (often called derogations) exist?

Universal Declaration of Human Rights: This was adopted by the UN General Assembly in 1948.

Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

European Convention on Human Rights: This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary 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 the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in Aksoy v. Turkey (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840).

In Ceylan v. Turkey (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test.

American Convention on Human Rights: This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13:

The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or

b. the protection of national security, public order, or public health or morals.

“Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”

“Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.”

Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65).

Cairo Declaration of Human Rights in Islam: This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22:

(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.

1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.

(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.

(d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination. International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: Everyone shall have the right to hold opinions without interference.

2. 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.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

African Charter on Human and People’s Rights: This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.

Have political theorists or philosophers discussed the permissibility of exceptions to this right?

Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the "harm principle." This, Mill claims, is the only context in which power can be "rightfully" executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an "offense principle" is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a "negative mental state" (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).

Is this right at times curtailed by private actors?

In many European countries (Germany, France, Austria, etc.), Holocaust denial is illegal and approximately 80 Facebook posts per year are blocked. Zuckerburg, in a 2018, interview stated that he found Holocaust denials to be deeply offensive, but does not believe that warrants censorship. Zuckerburg seems to follow the harm principle, stating that "unless individuals are trying to organize harm against someone, or attacking someone," content should not be censored (Rosenberg 2018). Facebook's Community Standards (also includes Instagram) are intended to guide freedom of expression on the site through rules such as preventing offline harm related to Facebook content through "consider[ing] the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety." The community standards prohibit the presence of terrorist groups on Facebook. The standards also "prohibit people from facilitating, organizing, promoting, or admitting to certain criminal or harmful activities targeted at people, businesses, property or animals." With hate speech, although the community standards are clear, their implementation is vague--"We define hate speech as a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability." The community standards do not account for politic speech. In a speech at Georgetown University, Zuckerburg articulated his position for political censorship: "I don’t think it’s right for a private company to censor politicians or news in a democracy" (Ghaffary 2020). Although Twitter has extremely similar policies to Facebook, they have dramatically different applications. In early May, Twitter fact-checked President Trump's tweets regarding voting by mail by placing links to a fact-checking page that debunks the president's tweets. Twitter announced that it would place labels on tweets containing false or misleading information in response to misinformation about the COVID-19 pandemic (Ghaffary 2020). Previously, Twitter had resisted such a move because the president is a world leader and considered his tweets as "noteworthy" and, as such, exempted them from their standards policy (Ghaffary 2020). Facebook has a similar conduct policy, but enacts it much differently. In response to the move, Zuckerburg stated that Facebook should not, nor is, an "arbiter of truth" (Ghaffary 2020). Twitter again used its new policy on the president's tweet about protests, saying that his "when the looting starts, the shooting starts" violated Twitter's policy of glorifying violence (Ghaffary 2020). Facebook, on the other hand, defended its position of not censoring the same statement by saying "didn’t violate Facebook’s policies about inciting violence. He said the company saw it 'as a warning about state action,' and that 'people need to know if the government is planning to deploy force” (Ghaffary 2020).

Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?

Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president ("Alien and Sedition Acts"). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime ("Schenck v. United States"). It also established, for the first time, the "clear and present danger" test, clarifying that "the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent ("Schenck v. United States"). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was "was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government" (Hudson). In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of "public peril." This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).

War may justify limitations on expression. This has long been true in the US; as Justice Holmes wrote in ​Schenck v. US ​(1919), a case over anti-draft publications, “when a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” During the Civil War, President Lincoln prohibited the publishing of information of troop movements, and government officials censored newspapers critical of the Union. During WWI, the US passed legislation such as the Sedition Act, which sought to eliminate speech “urging any curtailment of the war with intent to hinder its prosecution.” The Supreme Court has at times limited the wartime justification for restrictions. This occurred in ​New York Times v. US ​(1971), where the government was not allowed to censor publication of the Pentagon Papers, which contained information about the Vietnam War (Hudson). Contemporary jurisprudence would likely not justify some restrictions that have been allowed in the past. ​Schenck​ was decided using the clear and present danger test, which has been superseded by the more stringent imminent lawless action test (Parker). Had the newer test been used, ​Schenck ​may have been decided differently; the dissent argued that speech should be restricted only when it “imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country” (Parker). The COVID-19 pandemic has caused press crackdowns in various countries, often to downplay the outbreak’s severity. Egypt and Iran, for example have systematically curtailed reporting on the epidemic (Egypt guarantees freedom of expression in its Constitution, though this has long not been the case in practice (“Egypt). Iran guarantees free press subject to derogation in the national interest or under “Islamic criteria”). Honduras went so far as to suspend the clause in its constitution guaranteeing free speech. South Africa has curtailed free speech, albeit not to promote a rosy view of the pandemic. Rather, it has criminalized misinformation (Simon 2020). Responses to the pandemic provide insight into potential restrictions during other disasters. If a large part of Egypt or Iran were leveled by an earthquake, their governments might restrict free speech to ensure that only positive information about the recovery effort surfaces. Similarly, the South Africans who support criminalizing pandemic misinformation may also support criminalizing hurricane-safety misinformation if such a storm barrelled toward South Africa (putting aside whether this is meteorologically possible). As is argued in a report by the organization Article 19, free expression may be of even greater importance than normal during an emergency. Citizens need complete access to the truth so that they can make decisions about their safety (6). Free expression is an excellent way to ensure this truth comes out.

Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo

Parker: ​https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test m%20of%20speech%20often%20suffers,backseat%20to%20security%20and%20order.&text=In %20other%20words%2C%20the%20Supreme,than%20in%20times%20of%20peace.

Simon: ​https://www.cjr.org/analysis/coronavirus-press-freedom-crackdown.php

Egyptian Constitution: ​https://www.constituteproject.org/constitution/Egypt_2014.pdf

“Egypt”: https://www.amnesty.org/en/latest/news/2018/09/egypt-unprecedented-crackdown-on-freedom-o f-expression-under-alsisi-turns-egypt-into-openair-prison/

Iranian Constitution: ​https://www.wipo.int/edocs/lexdocs/laws/en/ir/ir001en.pdf

Article 19 Report: https://www.article19.org/data/files/pdfs/publications/freedom-of-information-humanitarian-disa sters.pdf