Right/Freedom of Expression/Culture and Politics

Freedom of Expression

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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Even though freedom of expression is not written into the US Constitution, as are many fundamental rights in the USA, most people would agree that this right is fundamental and should generally be protected, however the level to which it should be protected may differ from person to person.

Most people would think that freedom of expression is fundamental because it allows for conversations in two different areas of life: legal discourse and everyday life. Most Americans believe that freedom of expression is a fundamental right that should be protected. People should be allowed to express their opinions without fear of being “cancelled” or that they will be harmed for voicing their opinion. The Knight Foundation produced a survey on Americans’ views on free speech and found that 91% of them think that protecting it is crucial to protecting American Democracy (Knight Foundation, 2022). This necessity for freedom of speech becomes especially true when two people have an opposing viewpoint on something because they should be able to disagree freely, without fear of punishment. However, in a New York Times Article, most Americans have begun to bite their tongue because they’re afraid of “cancel culture,” a phenomenon that occurs when a politician, celebrity, or another influential person speaks in a certain way that causes a withdrawal of support. Some people may feel like others don’t need to express everything they’re thinking. In this article, “America has a Free Speech Problem,” the authors say that a poll created by Times Opinion and Siena College found that “84 percent of adults said it is a ‘very serious’ or ‘somewhat serious’ problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism” (America Has a Free Speech Problem, 2022).

In an interview between Sean Illing and Brian Leiter for Vox, Leiter explains that “we have massive amounts of worthless, dangerous speech in the public sphere right now” (Illing, 2019). It seems as if Leiter isn’t saying that freedom of speech is a “bad” thing, so much as that some people may be abusing this freedom. If speech were more regulated, and people weren’t allowed to post whatever they wanted without being fact-checked, then the speech could be less damaging—there could be less fake news, for instance. Limitations on freedom of expression could under such circumstances prevent unnecessary harm. Justice Murphy, in Chaplinsky v New Hampshire, argued that there are “certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and ‘fighting words’ (Chaplinsky v New Hampshire). This case is still upheld today, so anyone engages in such speech may be punished by the law.

While freedom of expression protects most people’s actions, it does not allow people to express themselves however they want. Some exceptions have been asserted over the years in American law. In Bethel School District No. 403 v. Fraser, a student was reprimanded by school officials for making a “lewd and vulgar speech” at an assembly. This is similar to Schenck v. United States, which ruled that yelling “fire” in a crowded theatre is not protected by the first amendment. So, the constitution has allowed for “freedom of speech,” there are exceptions when it seems it’s not appropriate for the setting. In this article, she mentions that “people can’t go around saying what they think all the time when that speech infringes on other’s rights. There needs to be a limit for what people do say, where people say it, when people say it” (Hanna, 2022). While they may not be rare, exceptions to the protection of freedom of expression should be made when our words negatively impact someone else.

It seems as if freedom of expression in the United States is less censored than in other parts of the world. In nations such as North Korea, Turkmenistan, Libya, Syria, and Belarus “the media is either state-controlled or silenced, the internet is filtered, and highly censored and restrictive laws are used—often in tandem with fear and intimidation—to prevent the spread of ideas and information” (Countries with Freedom of Speech 2024). While freedom of expression seems to be a priority in the United States, other countries do not protect people’s rights to express themselves freely. Freedom of expression is protected when it does not cause unnecessary harm or potentially put someone at risk. And on the off chance that it does negatively affect someone, or causes them harm, then there should be exceptions to their ability to freely express themselves.

References:

Knight Foundation. 2022. “Free Speech for All? Poll Reveals Americans’ Views on Free Expression Post-2020.” Knight Foundation. January 6, 2022. https://knightfoundation.org/press/releases/free-speech-for-all-poll-reveals-americans-views-on-free-expression-post-2020/.

The Editorial Board. 2022. “America Has a Free Speech Problem.” New York Times, March 18, 2022. https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html.

Illing, Sean. 2019. “Free Speech: Is It Actually a Good Thing?” Vox. Vox. March 4, 2019. https://www.vox.com/2019/3/4/18197209/free-speech-philosophy-politics-brian-leiter.

“Chaplinsky v. New Hampshire.” 2019. Oyez. 2019. https://www.oyez.org/cases/1940-1955/315us568.

Hanna, Verina. 2022. “Limitations Are Necessary for Freedom of Speech.” THE ALGONQUIN HARBINGER. March 17, 2022. https://arhsharbinger.com/29742/opinion/limitations-are-necessary-for-the-freedom-of-speech/#:~:text=The%20limitations%20of%20the%20freedom.

World Population Review. 2022. “Countries with Freedom of Speech 2020.” Worldpopulationreview.com. 2022. https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech.

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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. Freedom of the press is considered very 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 increased overall. This demonstrates that individuals value freedom of expression greater when it becomes limited. Additionally, according to Pew people with less education and people with populist 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 individual freedom of expression. Furthermore, the study found that individuals in countries with advanced economies were more likely to report that their country supported freedom of expression than individuals in countries with emerging economies. In Brazil, Spain, Argentina, Italy and Mexico, 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.

References:

Emily Ekins, The Cato Institute, "The State of Free Speech and Tolerance in America," October 31, 2017: https://www.cato.org/survey-reports/state-free-speech-tolerance-america

Aidan Connaughton, Pew Research Center, "5 charts on views of press freedom around the world", May 1 2020: https://www.pewresearch.org/short-reads/2020/05/01/5-charts-on-views-of-press-freedom-around-the-world/

Jeffrey M. Jones, Gallup,"More U.S. College Students Say Campus Climate Deters Speech," March 12, 2018, https://news.gallup.com/poll/229085/college-students-say-campus-climate-deters-speech.aspx

Richard Wike, Laura Silver, and Alexandra Castillo, Pew Research Center, "Publics satisfied with free speech, ability to improve living standards; many are critical of institutions, politicians," April 29, 2019, https://www.pewresearch.org/global/2019/04/29/publics-satisfied-with-free-speech-ability-to-improve-living-standards-many-are-critical-of-institutions-politicians/

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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 ( 1972) : 204-226

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The Universal Declaration of Human Rights, a document adopted by the United Nations General Assembly in December of 1948, recognized freedom of expression as a universal human right, inherent and applicable to all individuals. A milestone declaration, it has subsequently influenced countless state constitutions, treaties, and legal codes, defining the right as including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UN General Assembly 1948, 5). Though a majority of nations grant freedom of expression to their constituents in a formal capacity, there are often discrepancies in the way they are practiced and protected, as well as interpreted, in part because of a country’s history, political philosophy, and social factors. Some states are more restrictive of expression, prohibiting or discouraging acts and speech that reflect negatively on the nation’s religion, regime, or culture, while others safeguard this form of expression. Nearly all have censorship laws in place that touch upon defamation and libel, hate speech, and obscenities, though with varying degrees of consequences and protection.

Nations with strong secular traditions, such as France, allow for criticisms and negative portrayals of religion under the right to freedom of expression, while theocratic states, like Iran and Pakistan, completely restrict it under threat of punishment. Freedom of expression has been a fundamental right for French citizens since the proclamation of the Declaration of the Rights of Man and of the Citizen in 1789, which provided a “limited freedom of expression whose scope is defined by law,” leaving it up to legislators to establish those limits (Guedj 2021, 1). The right was redefined by the Law on the Freedom of the Press of 1881, which reemphasized the public’s ability to express itself while forbidding libel, defamation, offence to public decency and provocations to crimes, among others, and then again with the Pleven Act of 1972 and the Gayssot Act, which prohibited incitement to racial/religious hatred and Holocaust denial respectively (Colosimo 2018, 2). Those who violate these laws can be subject to fines or imprisonment. However, under France’s legislature, it is “possible to insult a religion, its figures and symbols,” as long as it does not incite violence or “insult members of a religion” for belonging to that faith (Colosimo 2018, 2). Though the lines between the two can be blurry, the right to freedom of expression in France is quite liberal when it comes to discussion around religion and allows for acts of expression that go against theological doctrine and criticize it.

There are several theocratic states that have provisions within their legal framework that also guarantee freedom of expression, though they heavily restrict it through strict anti-blasphemy laws that prohibit any act or speech that can be perceived as negative by governmental authorities and carry punishments. Article 24 of Iran’s constitution states, “Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law” (“Islamic Republic of Iran” 2023, 14). Pakistan has a similar provision in its constitution with Article 19: "Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, committing, or inciting an offence" (Pakistan Constitution, ch. 1, art. 19). While Iran and Pakistan do have a legal freedom of expression, they restrict it, with the international non-profit organization Reporters Without Borders (RWB) citing various cases in which they censored and filtered what is put online and “punished citizens for statements that were considered blasphemous” (“2023 World Press Freedom Index” 2023, 5). Restrictions of expressions on religion are not only enforced in theocratic countries, however, as Finland forbids breaching the sanctity of religion “which includes ‘blaspheming against God,’ publicly defaming or desecrating to offend something a religious community holds sacred, and disturbing worship or funeral ceremonies” with violators being subject to “fines or imprisonment of up to six months” (“Finland 2021 Report” 2021, 3).

Thailand, a constitutional monarchy, guaranteed freedom of expression to its citizens since the 1997 Constitution of Thailand and continues to guarantee it with the various different constitutions that have followed since, though it has a distinct interpretation of the right when it comes to the royal family. Thailand’s government is very restrictive of the way citizens can partake in this right, particularly with its strict lèse-majesté laws, seen as one of the harshest in the world. Lèse-majesté is an offence against the dignity of a ruling head of state, an act that is prohibited under Thailand’s legal code which states, “Whoever defames, insults, or threatens the King, the Queen, the Heir to the Throne, or the Regent, will be punished with a jail sentence between three and fifteen years.” (Mérieau 2021, 77). The state’s right to freedom of expression does not cover speech or acts that are deemed negative towards the monarchy, with the law being considered ambiguous and open to the interpretation of authorities. This distinct interpretation of freedom of expression derives from the influence of Hindu-Buddhist culture in Thailand where kings were seen as divine figures to be respected, giving them a form of sanctity that left a lasting impact on the country’s political system (Mérieau 2021, 78). Other states that interpret freedom of expression in a similar way include Turkey, where it is illegal under Article 301 of the country’s penal code to insult the Turkish nation, its government, and its national heroes under threat of imprisonment (“Turkey: Article 301” 2006, 1).

Saudi Arabia, holds freedom of expression to a different status than the previously mentioned states, failing to articulate it in its law but still penalizing acts of expression that are deemed blasphemous or portray the regime in a negative light, with punishments ranging from hefty fines to death sentences. Saudi Arabia’s Basic Law of Governance, the country’s constitution-like charter, does not provide for freedom of expression or the press, simply stating, "Mass media and all other vehicles of expression shall employ civil and polite language, contribute towards the education of the nation, and strengthen unity. The media are prohibited from committing acts that lead to disorder and division, affect the security of the state or its public relations, or undermine human dignity and rights” (U.S. Department of State 2018, 23). This gives authorities ample power to determine what expression violates the law, placing heavy emphasis on the safeguarding of religious values and morals. A distinct feature of freedom of expression in the United States that differentiates it from many other nations is that certain hate speech is protected under the First Amendment. In the United States, “hate speech is given wide constitutional protection while under international human rights covenants and in other Western democracies, such as Canada, Germany, and the United Kingdom, it is largely prohibited and subjected to criminal sanctions” (Rosenfeld 2002, 1523). This was reaffirmed in the 2017 U.S. Supreme Court Case Matal v. Tam, in which the justices determined that hate speech falls under the protection of free speech: “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” (2). The expression may be subject to punishment if it seeks to incite an imminent violent or lawless action This is quite a different interpretation than many other democratic nations, where expressions that are considered hate speech can be punishable by law. In Germany, for example, acts of expression that are racist, antisemitic, advocating for Nazism, denying the Holocaust, or glorifying the ideology of Hitler are illegal (“Germany: Freedom in the World” 2023, 9).

The right to freedom of expression is recognized as a fundamental human right that applies to all individuals by the United Nations, being adopted and incorporated into the legal code or constitutions of a majority of states around the world. The right differs, however, in its interpretation and practice within each individual country, as well as the extent to which it is protected. Some states interpret freedom of expression through a more restrictive lens, prohibiting negative acts of expression that touch upon religion, government, or culture, while others allow it with more lenient limitations. A state’s interpretation of freedom of expression can be influenced by its unique history, its political climate, as well as social and religious factors, resulting in different interpretations and practices of freedom of expression around the world.

References:

“2023 World Press Freedom Index – Journalism Threatened by Fake Content Industry.” 2023. RSF. Accessed June 14. https://rsf.org/en/2023-world-press-freedom-index- journalism-threatened-fake-content-industry. 

Colosimo, Anastasia. 2018. “Blasphemy in France and in Europe: A Right or an Offense?” Institut Montaigne. November 16. https://www.institutmontaigne.org/en/expressions

“Finland 2021 International Religious Freedom Report.” 2023. U.S. Department of State. https://www.state.gov/wp-content/uploads/2022/04/FINLAND-2021

“Germany: Freedom in the World 2022 Country Report.” 2023. Freedom House. Accessed June 9. https://freedomhouse.org/country/germany/freedom-world/2022. 

Guedj, Nikita. 2021. “The Law on the Freedom of the Press of 29 July 1881: A Text That Both Guarantees and Restricts Freedom of Expression.” Fondation Descartes. July 16. https://www.fondationdescartes.org/en/2021/07/the-law-on-the-freedom-of-the-press-of- 29-july-1881-a-text-that-both-guarantees-and-restricts-freedom-of-expression/.

“Islamic Republic of Iran 1979 (Rev. 1989) Constitution.” 1989. Constitute. https://www.constituteproject.org/constitution/Iran_1989?lang=en. 

Matal, Interim Director, United States Patent and Trademark Office v. Tam. 582 U.S. (2027)

Mérieau, E. 2021. “A History of the Thai lèse-majesté Law”. Thai Legal History: From Traditional to Modern Law, 60-70.

Rosenfeld, Michel. 2002. “Hate speech in constitutional jurisprudence: a comparative analysis.” Cardozo L. Rev., 24, 1523.

“Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ Is an Insult to Free Expression.” 2006. Amnesty International. March 1. https://www.amnesty.org/en/documents/eur44/003/2006/en/. 

UN General Assembly. 1948. Universal Declaration of Human Rights, , 217 A (III), https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf

U.S Department of State. 2018. Country Reports on Human Rights Practices for 2017: Saudi Arabia.