Freedom of Expression/Government curtailment

Freedom of Expression

Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?

In some cases, governments have curtailed freedom of expression for reasons that are not generally seen as permissible by the standards of the United States.

As noted by Professor Jérôme Viala-Gaudefroy, not all types of expression are protected under US law. Those involving “obscenity, fraud, child pornography, harassment, incitement of illegal conduct and imminent lawless action, true threats, and commercial speech such as advertising, copyright or patent rights” (Viala-Gaudefroy 2021) can be restricted, among others. That said, there have been instances within the US where the right was curtailed for a reason not listed above. These justifications, therefore, would be viewed as non-permissible restrictions on freedom of expression.

The Minnesota state legislature passed a statute that barred voters and other individuals from wearing political apparel and accessories inside a polling place on election day, which included a “political badge, political button, or other political insignia” (Minnesota Voters Alliance v. Mansky 2018, 1). The legislation was meant to create “an island of calm in which voters [could] peacefully contemplate their choices” (Minnesota Voters Alliance v. Mansky 2018, 11), essentially eliminating disruptions at the polling place. However, the ban was challenged by the Minnesota Voters Alliance (MVA) and other individual plaintiffs, who argued that it violated their first amendment rights “both on its face and as applied to their particular items of apparel” (Minnesota Voters Alliance v. Mansky 2018, 1). The Supreme Court agreed with the general sentiments of the Minnesota law, stating that “casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction (Minnesota Voters Alliance v. Mansky 2018, 11). However, the body ruled in favor of the MVA, explaining that the legislation was too broad and muddled - “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out… the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test” (Minnesota Voters Alliance v. Mansky 2018, 12-13). The state’s ban on expression within polling places was thus not deemed permissible.

Similar to US law, the European Convention on Human Rights does not protect all types of expression. Article 10 of the document clearly states that the right can be restricted when “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 reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Council of Europe 1950, 12). However, what a country believes is a necessary restriction on one of these grounds does not necessarily match up with the opinion of the European Court of Human Rights, which has the final say on what types of expression are permissible.

In 2005, journalist Eynulla Fatullayev, an Azerbaijani national, visited Nagorno-Karabakh, a region that has been the subject of a territorial dispute between Armenia and Azerbaijan and at the time was controlled by Armenian military forces. Fatullayev interviewed both locals and officials during his visit, as well as some Azerbaijani refugees who had fled the region, which he then published the following year. In his piece, Fatullayev claimed that during the Nagorno-Karabakh war in 1992, civilians “had been mutilated by [their] own” (Fatullayev v. Azerbaijan 2010, 4) Azerbaijani forces as they attempted to flee the region, among other statements. Upon reading the article, a group filed a criminal complaint against Fatullayev, asking that he “be convicted of defamation and of falsely accusing Azerbaijani soldiers of having committed an especially grave crime” (Fatullayev v. Azerbaijan 2010, 5). Fatullayev was later convicted of these crimes, as well as of terrorism or the threat of terrorism for another article he had published which appeared to address Iranian-Azerbaijani relations and threaten ethnic conflict. As a citizen of a country that signed the European Convention on Human Rights (hereby known as“the Convention”), Fatullayev was able to appeal his convictions to the European Court on Human Rights (“the Court”) on the grounds that his right to freedom of expression as defined by Article 10 of the Convention had been violated. The Court sided with the applicant, saying that he was presenting a set of opinions in a debate and did not seek to defame or act maliciously towards the victims and actors involved in the war, and thus was not abusing their rights. Additionally, the Azerbaijani government’s interference was not “necessary in a democratic society” or “a pressing social need” (Fatullayev v. Azerbaijan 2010, 22). Therefore, the body concluded “that the statements that gave rise to the applicant's conviction did not amount to any activity infringing the essence of the values underlying the Convention or calculated to destroy or restrict the rights and freedoms guaranteed by it…the applicant's freedom of expression cannot be removed from the protection of Article 10” (Fatullayev v. Azerbaijan 2010, 22). By the Court’s standards, then, Azerbaijan’s attempt to inhibit the applicant’s freedom of expression was unacceptable.

References:

Council of Europe. 1950. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. https://www.echr.coe.int/documents/convention_eng.pdf

Fatullayev v. Azerbaijan, Application no. 40984/07, ECtHR judgment of 4 October 2010. https://hudoc.echr.coe.int/fre?i=001-216685

Minnesota Voters Alliance v. Mansky, 849 F. 3d 749 (2018). https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf

Viala-Gaudefroy, Jérôme. 2021. “The Idolization of Free Speech in the United States.” The Conversation, February 22, 2021. https://theconversation.com/the-idolization-of-free-speech-in-the-united-states-155778#:~:text=Free%20speech%20is%20not%20absolute,advertising%2C%20copyright%20or%20patent%20rights