Freedom of Expression/Conflicts with other Rights/Status

Freedom of Expression

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).

References:

Preferred Position Doctrine, Richard L. Pacelle Jr., The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.

The 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 Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.

Why is access to freedom of expression important?, Index on Censorship, 2013 United Kingdom: https://www.indexoncensorship.org/2013/03/why-is-access-to-freedom-of-expression-important/#:~:text=Freedom%20of%20expression%20is%20a,development%20process%20of%20any%20society.