Legal Codification

Legal Codification

Right	Breakout	Contents
Freedom of Association		Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights. Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”
Freedom of Association		Constitutions written after 1900 very often protect free association. As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.
Freedom of Association		No. The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “"deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law. References: Cornell Law School, Legal Information Institute, “First Amendment”: https://www.law.cornell.edu/wex/first_amendment
Freedom of Association		Yes. As seen in Roberts v. US Jaycees, the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws. Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform. Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted. References: Buckley v. Valeo, 424 U.S. 1 (1976) Christian Legal Society v. Martinez, 561 U.S. 661 (2010), Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008) Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Freedom of Association		Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. In Roberts v. US Jaycees, an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” References: Boy Scouts of America v. Dale, 530 U. S. 640 NAACP v. Alabama, 357 U. S. 449 NAACP v. Button, 371 U.S. 415 (1963) Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Freedom of Expression		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. 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. 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. References: American Declaration of the Rights and Duties of Man. Basic Documents - American Declaration. (n.d.). https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm. European Convention on Human Rights. https://www.echr.coe.int/. (n.d.). https://www.echr.coe.int/documents/convention_eng.pdf. International Covenant on Civil and Political Rights. OHCHR. (n.d.). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. PLC, A. M. B. F. T. (n.d.). African Commission on Human and Peoples' Rights. African Commission on Human and Peoples' Rights Legal instruments. https://www.achpr.org/legalinstruments/detail?id=49. Organization of American States. Declaration of Principles on Freedom of Expression. http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26. 2021. United Nations. (n.d.). Universal Declaration of Human Rights. United Nations. https://www.un.org/en/about-us/universal-declaration-of-human-rights.
Freedom of Expression		The right to free expression, expressed in terms of freedom of speech, is “formally granted by the laws of most nations” (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 in 2015 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. References: Pew Research Center: “Global Support for Principle of Free Expression, but Opposition to Some Forms of Speech,” November 8, 2015: https://www.pewresearch.org/global/2015/11/18/global-support-for-principle-of-free-expression-but-opposition-to-some-forms-of-speech/ (Accessed November 9, 2022 World Population Review: https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech (Accessed November 9, 2022)
Freedom of Expression		The right to free expression is not stated explicitly in the United States constitution, though it is universally accepted as covered by the First Amendment: “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.” The rights to free speech, press, assembly, and petition are generally viewed are elements of the right to free expression in the USA.
Freedom of Expression		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 “to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Additionally, there is a legal exception for “fighting words”. 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. In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, the Court described a four-part test for determining whether or not the government could limit commercial speech: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it 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. References: Schenck v. United States, 249 U.S. 48 (1919): https://supreme.justia.com/cases/federal/us/249/47/ Brandenburg v. Ohio, 395 U.S. 444 (1969): https://supreme.justia.com/cases/federal/us/395/444/ Chaplinsky v. New Hampshire, 315 U.S. 572; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942): https://supreme.justia.com/cases/federal/us/315/568/ Miller v. California, 413 U.S. 37 (1973): https://supreme.justia.com/cases/federal/us/413/15/ New York Times Company v. Sullivan, 376 US 254 (1964): https://supreme.justia.com/cases/federal/us/376/254/ Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 US 566 (1980): https://supreme.justia.com/cases/federal/us/447/557/ Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/wex/defamation#:~:text=Defamation%20is%20a%20statement%20that,for%20defamation%20and%20potential%20damages.
Freedom of Expression		Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution. The United States Supreme Court has gradually portrayed freedom of expression as being implicit in the U.S. Constitution. This reality stems from legitimate discourse on activities that may not fall under the grammatical definition of speech, but nevertheless warrant protection by the judiciary in order for democratic norms to prevail. From early cases pertaining to free religious exercise to several landmark judgments in the latter half of the 20th Century, the Court has introduced and expanded its mythology surrounding free expression. Some forms of expression that may be protected—and regulated—include religious expression, protests, fighting words, imminent threats, obscenity, and expressive student conduct in academic settings. Prior to various cases dealing with the Free Exercise Clause of the First Amendment, no significant attempt had been made by the court to examine the relationship between free expression and American constitutional law. Despite the separate inclusion of freedom of religion in the Constitution, cases revolving around religious activity have shaped the Court’s commentary on free expression. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court ruled in favor of a group of Jehovah’s Witnesses in New Haven who had been prosecuted for engaging in religious solicitation without a license from the local government. The justices primarily asserted that the Constitution guarantees the “freedom to act” for the Cantwell solicitors, or other groups that engage in religious expression (Justice Roberts, 1940). Solicitation can neither be termed as purely speech or purely expressive, however, due to the combination of speech and physical expeditions that are typically involved. While the freedom to “act” may insinuate a right to engage in expressive activities, the justices never directly mentioned expression—a reality that, combined with the ambiguous nature of soliciting, did not establish expression as a fundamental right. Given the legal ambiguity established by Cantwell, the Court likely understood the necessity of defining expression as it pertained to religious issues. In Sherbert v. Verner, 374 U.S. 398 (1963), the justices established a compelling interest test for government statutes that potentially abridge certain forms of religious expression. Writing for the majority in response to a lawsuit from a Seventh-Day Adventist who was fired and denied unemployment benefits for refusing to work on Saturday, Justice Brennan asserted that “the imposition of such a condition [labor mandates lacking in exemptions for religious workers] … inevitably deterred or discouraged the exercise of First Amendment rights of expression” for religious groups (Justice Brennan, 1963). Given that this ruling directly mentioned free expression in response to a lawsuit claiming religious discrimination, it can be argued that Sherbert clarified the position of free religious expression implied by Cantwell. Following several landmark decisions on expression issued by the Warren and Burger Courts, religious exercise reintroduced itself in the ongoing debate over the extent to which freedom of expression can be invoked in the courtroom. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court rejected a Free Exercise Clause challenge of a narcotics statute in Oregon (specifically, one that regulated Peyote, which was ingested by Native American Church adherents as a religious custom) while acknowledging attempts in the past to “punish the expression of religious doctrines [the state] believes to be false” (Justice Scalia, from United States v. Ballard, 322 U.S. 78 (1944). In a ruling that was sharply criticized by religious groups following its release, the Court confirmed the implicit right of expression as it pertains to religion. While it may be argued that the decisions in Cantwell, Sherbert, and Smith merely affirmed the previously enumerated right of free religious exercise, the various references to expression in all three of these decisions fit within a broader line of judicial reasoning in expression-based cases that extend beyond religion, which will be further discussed below. As Smith indicates, The Court’s acknowledgment of freedom of expression being an implicit right can be evidenced by decisions that limit this right altogether. In ruling that expressive activities that constitute a clear and present danger to the public are not protected, for example, the Court implies that any activities that do not exhibit this danger are lawful. This precedent was established by Schenck v. United States, 249 U.S. 47 (1919), which affirmed the ability of government officials to censor modes of expression (i.e. Charles Schenck's pamphlets, which advocated for illegally avoiding the draft) that impede on the government’s ability to wage war, while acknowledging that such activities may be protected during times of peace. As the distribution of pamphlets would likely constitute expression rather than physical speech, it may be inferred that the justices, in limiting freedom of expression in some cases, acknowledged its legality in others. The Court furthered this assertion in United States v. O’Brien, 391 U.S. 367 (1968) by ruling that the burning of draft cards in public places during times of war is not protected speech, as the prohibition of this activity was “an important or substantial governmental interest unrelated to the suppression of free expression” (Justice Warren, 1968). In both decisions, the Court chose to constrain—rather than outlaw—forms of expression that cannot be termed as speech. Finally, governmental regulations for public protests were affirmed in Cox v. New Hampshire 312 U.S. 569 (1941), in which the justices asserted that “time, place, and manner restrictions” have the effect of “safeguarding the good order upon which [civil liberties] ultimately depend” (Justice Hughes, 1941). Given that no right can be limited without prior acknowledgement of its existence, it can be argued that the Court implicitly recognized free expression in Schenck and Cox before directly mentioning it in O’Brien. In light of the Court’s commentary on free expression when confronted with issues pertaining to free exercise and public disturbances, its decisions in Barnette, Tinker, and Morse represent the most notable examples of free expression being recognized as an implicit right. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the court condemned an effort by school administrators to force students to salute the American Flag as an “effort” to “muffle expression” in the schoolhouse (Justice Jackson, 1943). Despite their dissent being primarily motivated by personal religious beliefs, the plaintiffs alleged a violation of the Speech Clause of the First Amendment. The Court clearly interpreted the situation as compelled expression, as defining it as physical speech would not accurately reflect the situation. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court broadly affirmed the implicit right to free expression in a decision that largely reflected the language of cases that have already been discussed. The justices affirmed that any governmental interest in promoting order in public schools is “not enough to overcome the right to freedom of expression” enjoyed by students, who “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Justice Fortas, 1969). In this instance, the Court emphasized freedom of expression without qualification, as its commentary on restrictions that school officials could plausibly enact without abridging the rights of students serves to further affirm the existence of free expression. This rationale was reaffirmed by Morse v. Frederick, 551 U.S. 393 (2007), in which the Court limited student speech (or, more precisely, displaying a banner) that can be “reasonably regard[ed] as promoting illegal drug use,” which remains a major example of the judiciary restricting the implicit right of free expression (Justice Roberts, 2002). In reaffirming and providing exceptions for the precedent set by Tinker (with the exception of Justice Thomas, who called for Tinker to be overruled), the Court maintained its record of acknowledging and limiting free expression. Following the Court’s landmark decision in Tinker, the question of implicitness was all but resolved, and nearly all subsequent cases served to determine the scope—rather than legitimacy—of free expression. Eventually, the justices were again confronted with the issues of anti-war expression and profanity following peace activist Paul Cohen’s arrest in a California courthouse for wearing a shirt depicting an explicit anti-war slogan. In Cohen v. California 403, U.S. 15 (1971), the Court asserted that California’s law prohibiting such behavior “infringed [Cohen's] rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution,” which were extended to the states via selective incorporation through the Due Process Clause (Justice Harlan, 1971). In Texas v. Johnson, 491 U.S. 397 (1989), the Court again confronted the issue of expression deemed profane by governmental actors in ruling that the burning of the American Flag represented “expressive conduct” that was “sufficiently imbued with elements of [political] communication,” making it protected under the Due Process Clause (Justice Brennan, 1989). In Cohen and Johnson, the Court rejected attempts by state government officials to impose limitations on forms of expression it viewed as offensive to the general public—a remarkable feat for freedom of expression, which would nevertheless be limited in other cases. Expression pertaining to pornographic material was hindered in Miller v. California, 413 U.S. 15 (1973), which concerned the right (or lack thereof) of businesses to distribute explicit content through the U.S. Postal Service. In ruling that obscene expression can be regulated while “acknowledging the inherent dangers of undertaking to regulate any form of expression,” the Court established a clear standard for certain forms of explicit expression that can be regulated (Justice Burger, 1973). In Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015), the justices ruled that state governments can reject proposed license plate designs on account of their potential to offend the general public due to their established history of “communicat[ing] messages from the States.” In particular, the Court cited Arizona's “Hereford Steer” License Plate, New Hampshire's “Old Man of the Mountain” License Plate, and various other examples of license plates in other states to affirm this argument (Justice Breyer, 2015). In summary, the implicit right of free expression has developed from the commentary of free exercise cases and evolved into an implied right that the Supreme Court no longer questions. It does not contain any strict limitations, as any standard beyond the establishment of an overbearing governmental interest would negate its effect of addressing the shortcomings of the free speech clause. Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/ Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/ Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/ United States v. Ballard, 322 U.S. 78 (1944) https://supreme.justia.com/cases/federal/us/322/78/ Schenck v. United States, 249 U.S. 47 (1919) https://supreme.justia.com/cases/federal/us/249/47/ United States v. O’Brien, 391 U.S. 367 (1968) https://supreme.justia.com/cases/federal/us/391/367/ Cox v. New Hampshire 312 U.S. 569 (1941) https://supreme.justia.com/cases/federal/us/312/569/ West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) https://supreme.justia.com/cases/federal/us/319/624/ Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) https://supreme.justia.com/cases/federal/us/393/503/ Morse v. Frederick, 551 U.S. 393 (2007) https://supreme.justia.com/cases/federal/us/551/393/ Cohen v. California 403, U.S. 15 (1971) https://supreme.justia.com/cases/federal/us/403/15/ Texas v. Johnson, 491 U.S. 397 (1989) https://supreme.justia.com/cases/federal/us/491/397/ Miller v. California, 413 U.S. 15 (1973) https://supreme.justia.com/cases/federal/us/413/15/ Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015) https://supreme.justia.com/cases/federal/us/576/200/ Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.
Freedom of Religion		Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner). The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees. However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion. REFERENCES “Global Restrictions on Religion.” Pew Research Center's Religion & Public Life Project, 30 May 2020, www.pewforum.org/2009/12/17/global-restrictions-on-religion/. Human Rights Library- University of Minnesota, hrlibrary.umn.edu/edumat/studyguides/religion.html. “International Religious Freedom Report for 2017.” Wilson Center, www.wilsoncenter.org/article/international-religious-freedom-report-for-2017. “International Standards - Framework for Communications.” OHCHR, www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx. Mark Weston Janis, “Religion and International Law.” ASIL, 17 Nov. 2002, www.asil.org/insights/volume/7/issue/13/religion-and-international-law. U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/irf/religiousfreedom//index.htm. “You Can Be Put to Death for Atheism in 13 Countries around the World.” Humanists International, 1 Feb. 2019, humanists.international/2013/12/you-can-be-put-death-atheism-13-countries-around-world/.
Freedom of Religion		Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world. REFERENCES Pellot, Brian. “The Worst Countries for Religious Freedom.” Index on Censorship, 3 Jan. 2014, www.indexoncensorship.org/2014/01/worst-countries-religious-freedom/.
Freedom of Religion		Freedom of religion is included in the First Amendment of the United States Constitution. “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.” The right to free religious exercise was enshrined in the presence of several other noteworthy rights, and was complemented by what we refer to today as the Establishment Clause—a provision mandating the separation of stately matters and religion. Furthermore, the Free Exercise Clause was later expanded by proxy through the Due Process Clause of the Fourteenth Amendment. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment established the process of Selective Incorporation, which extended the Bill of Rights to state governments. The extent of religious freedom guaranteed by the Constitution remains an open question, however, as the evolution of case law pertaining to the Free Exercise Clause and the Establishment Clause has gradually created a formula of exceptions and standards for governments and religious organizations alike. Given that Constitutionally-protected rights must be manually incorporated to the states, the incorporation of the Free Exercise Clause by the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940) represented a milestone for religious freedom. The arrest of several Jehovah’s Witnesses in New Haven, Connecticut due to their failure to obtain a religious solicitation license provoked a free exercise lawsuit against the city. Ruling for the Witnesses, the Court decried the “censorship of religion” based on its “right to survive” in a hostile environment (Justice Roberts, 1940). Despite their statements in support of religious freedom, the justices also used the Cantwell decision to imply different ways that religious expression can be regulated while acknowledging the government’s interest in maintaining public order. In light of the Cantwell precedent, a strenuous situation unfolded between religious organizations and the government, given that the latter’s power to prosecute certain religious activities was both restricted and affirmed by the Court. This situation escalated following the adoption of the Sherbert-Yoder test. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court ruled in favor of Adeil Sherbert, a Seventh-day Adventist in South Carolina who was fired—and denied unemployment benefits—for refusing to work on Saturday, which is viewed as a religious holiday by the Seventh-day Adventist Church. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the justices struck down a Wisconsin statute mandating a public education for children under the age of 16 following a lawsuit from several Amish residents, who accused the law of infringing on their religious exercise. The Sherbert-Yoder test mandated that strict scrutiny be applied to laws that potentially infringe on religious freedom. Specifically, the state must prove that the law in question is vital to achieving a compelling interest, and that no less restrictive alternatives exist. South Carolina’s refusal to accommodate Adeil Sherbert in spite of her “declared ineligibility” to work on Saturdays, for example, forced her to choose between her financial well-being and religious adherence—a reality that could have reasonably been accommodated by exceptions for practicing Seventh-Day Adventists (Justice Brennan, 1963). Comparatively, the Wisconsin Statute struck down by Yoder did not offer any religious exemptions to compulsory public school attendance. Due to the well-established nature of Amish primary education, such an exception could reasonably have been made in this case without compromising the state’s interest in ensuring an educated populace. Despite the high standard created by strict scrutiny for the incidental suppression of religious exercise, the Court established clear exceptions for the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (1961) and Goldman v. Weinberger, 475 U.S. 503 (1986), two cases that preceded and followed the Court’s adoption of the Sherbert-Yoder test, respectively (both cases predated the Smith test, which will be further discussed below). In Braunfeld, the constitutionality of a Pennsylvania Blue Law (ordinances that ban nonessential commercial activity on a certain day, most commonly Sunday) was challenged by Abraham Braunfeld, an Orthodox Jew who could not work on Saturdays due to his religion. Ruling for the state, the justices asserted that Pennsylvania’s attempt to create a “day of rest” represented one of many “important social duties” afforded to the state (Justice Warren, 1961). Given that religious exceptions would likely compromise the legitimacy of this effort by promoting typical commercial activities, no realistic alternative existed for Pennsylvania—a key difference from the situation in Sherbert. Finally, the Court gave its typical deference to “the professional judgment of military authorities” in Goldman (Justice Rehnquist, 1986). The justices ruled that Simcha Goldman, a United States Air Force captain who challenged the Air Force Dress Code due to its prohibition of religious garments, was not entitled to wear a yarmulke while serving in the military. Despite the various examples of court-imposed limitations to religious activity evidenced by Braunfeld and Goldman, the Sherbert-Yoder test continued to provide a high bar for governmental intrusions on free exercise. The purview of this test was greatly limited, however, by the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the justices rejected a free exercise claim from the Native American Church in Oregon. Two adherents to the Church were fired from their jobs for ingesting peyote, a practice encouraged by their religion but outlawed in the state of Oregon. Like Sherbert, they were fired and denied unemployment benefits. Writing for the majority, Justice Scalia asserted that the Oregon statute was “generally applicable criminal law” that was not designed to infringe on the Native American Church—a stark departure from the Court’s rulings on supposedly secular laws in Sherbert and Yoder. Unlike both cases, however, an exception for Smith would have likely imperiled the legitimacy of Oregon’s drug control laws, thereby creating a problematic issue for public safety. Following this ruling, broad public outcry prompted congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which effectively mandated the reapplication of the strict scrutiny standard for all levels of government. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court curtailed the RFRA by limiting its purview to federal issues. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the court pivoted back to the least restrictive means test outlined in Sherbert and Yoder without explicitly overruling Smith. In response to a provision by the Affordable Care Act requiring for-profit corporations to provide funding for contraceptives as part of their insurance plans, the owners of Hobby Lobby filed suit, alleging the law violated the RFRA and the Free Exercise Clause. Ruling for Hobby Lobby, the Court asserted that any contraceptive mandate would compel the Burwell family to “facilitate access to contraceptive drugs or devices” that would violate their “sincere Christian beliefs” (Justice Alito, 2014). Furthermore, the justices contended that exemptions for closely-held for-profit companies such as Hobby Lobby would have represented a less restrictive measure—an argument that encapsulated the broader shift towards the Sherbert-Yoder test for certain cases. Contrary to the Free Exercise Clause, the Establishment Clause plays a more subtle role in matters pertaining to religious exercise. The question of whether freedom of religion includes the right to be free from religion has been debated since the inception of the Constitution, and several cases pertaining to the Establishment Clause have also created implications for free exercise. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established a standard for determining any governmental violations of the Establishment Clause, highlighted by its prohibition of activities that constitute “an excessive government entanglement with religion” (Justice Burger, 1971). The ambiguity of this test was made clear by Kennedy v. Bremerton School District, 597 U.S. 507 (2022), in which the Court ruled in favor of a public high school football coach in Washington State who had been suspended for holding prayers with his students during school events. This decision replaced the Lemon test with the “historical practices and understandings” test, which asserted that Christianity can be treated as an American cultural phenomenon. This line of reasoning was previously implied in Van Orden v. Perry, 545 U.S. 677 (2005) and American Legion v. American Humanist Association, 588 U.S. ___ (2019), in which the presence of Christian religious symbols on public property (outside a courthouse and in a veterans' cemetery, respectively) were upheld for their cultural—rather than religious—significance. While the cultural importance of Christianity to American culture cannot be denied, this test does not deny that Christian exercises or objects within public property are inherently religious—a dilemma that has sparked fierce debate since the Kennedy ruling. Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/ Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/ Wisconsin v. Yoder, 406 U.S. 205 (1972) https://supreme.justia.com/cases/federal/us/406/205/ Braunfeld v. Brown, 366 U.S. 599 (1961) https://supreme.justia.com/cases/federal/us/366/599/ Goldman v. Weinberger, 475 U.S. 503 (1986) https://supreme.justia.com/cases/federal/us/475/503/ Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/ City of Boerne v. Flores, 521 U.S. 507 (1997) https://supreme.justia.com/cases/federal/us/521/507/ Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) https://supreme.justia.com/cases/federal/us/573/682/ Lemon v. Kurtzman, 403 U.S. 602 (1971) https://supreme.justia.com/cases/federal/us/403/602/ Kennedy v. Bremerton School District, 597 U.S. 507 (2022) https://supreme.justia.com/cases/federal/us/597/21-418/ Van Orden v. Perry, 545 U.S. 677 (2005) https://supreme.justia.com/cases/federal/us/545/677/ American Legion v. American Humanist Association, 588 U.S. ___ (2019) https://supreme.justia.com/cases/federal/us/588/17-1717/
Freedom of Religion		Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies. Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020). However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government (Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc. Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world. REFERENCES A Brief History of Peyote, www.peyote.org/. “Establishment Clause Overview.” Freedom Forum Institute, www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/establishment-clause-overview/. “FindLaw's United States Supreme Court Case and Opinions.” Findlaw, caselaw.findlaw.com/us-supreme-court/492/573.html. David L. Hudson, Jr.. Endorsement Test, mtsu.edu/first-amendment/article/833/endorsement-test. Lutz, Zak. “Limits of Religious Freedom.” Harvard Political Review, 6 Nov. 2015, harvardpolitics.com/covers/limits-of-religious-freedom/. McGovern, Geoff. Lynch v. Donnelly, mtsu.edu/first-amendment/article/737/lynch-v-donnelly. “Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).” Justia Law, supreme.justia.com/cases/federal/us/390/400/. Richard L. Pacelle, Jr.. Lemon Test, www.mtsu.edu/first-amendment/article/834/lemon-test. “The No Religious Test Clause.” Article VI, The National Constitution Center, constitutioncenter.org/interactive-constitution/interpretation/article-vi/clauses/32. Vile, John R. Coercion Test, www.mtsu.edu/first-amendment/article/899/coercion-test. “What Does ‘Free Exercise’ of Religion Mean under the First Amendment?” Freedom Forum Institute, www.freedomforuminstitute.org/about/faq/what-does-free-exercise-of-religion-mean-under-the-first-amendment/.
Freedom of Religion		The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell) REFERENCES Alan E. Brownstein and Jud Campbell, “The No Religious Test Clause,” https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/32
Freedom of the Press		Multiple human rights regimes at both international and regional levels enshrine the universal freedom of expression in their frameworks, in accordance with the democratic 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 calls for the decriminalization of libel, allowing for the accountability role of the media to be adequately fulfilled. (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 democratic value.   References American Declaration of the Rights and Duties of Man. Basic Documents - American Declaration. (n.d.). https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm. Dyer, Andrew. “Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt?” Netherlands Quarterly of Human Rights, vol. 33, no. 1, Mar. 2015, pp. 78–107, doi:10.1177/016934411503300105. European Convention on Human Rights. https://www.echr.coe.int/. (n.d.). https://www.echr.coe.int/documents/convention_eng.pdf. International Covenant on Civil and Political Rights. OHCHR. (n.d.). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. PLC, A. M. B. F. T. (n.d.). African Commission on Human and Peoples' Rights. African Commission on Human and Peoples' Rights Legal instruments. https://www.achpr.org/legalinstruments/detail?id=49. Organization of American States. Declaration of Principles on Freedom of Expression. http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26. 2021. Organization for Security and Cooperation in Europe, The Representative on Freedom of the Media, Amsterdam Recommendations. Freedom of the Media and the Internet. OSCE, Jun. 14, 2003, www.osce.org/files/f/documents/4/a/41903.pdf Organization for Security and Cooperation in Europe, The Representative on Freedom of the Media, Fifth Central Asia Media Conference. Media in Multi-Cultural and Multi-Lingual Societies. OSCE, 2003, www.osce.org/files/f/documents/5/d/42521.pdf United Nations. (n.d.). Universal Declaration of Human Rights. United Nations. https://www.un.org/en/about-us/universal-declaration-of-human-rights.
Freedom of the Press		The right to freedom of the press is in the first amendment: “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” (United States of America 1789 (Rev. 1992) Constitution - Constitute, 1992) .
Freedom of the Press		Given the fuzzy line between freedom of speech and freedom of the press (Freedom of Expression, n.d.), restrictions or exceptions towards speech will impact the press and vice versa. With this is mind, there are two main exceptions in the history of United States law to the right of freedom of the press: the Espionage Act of 1917, and the Sedition Act of 1918. The Espionage Act of 1917 stated that an individual who shares a document or information that “…could be used to the injury of the United States…shall be fined…or imprisoned…” (18 U.S. Code § 793 - Gathering, Transmitting or Losing Defense Information, n.d.). Similar to the Alien and Sedition Acts, the Espionage Act was proposed in the context of war where President Woodrow Wilson himself pleaded for greater restriction to expression and punishment towards individuals that opposed the United States government in his State of the Union address: “Such creatures of passion, disloyalty, and anarchy must be crushed out” (Handout B, n.d.). The Espionage Act was put to the test in the case Schenck v. United States ( 1919) . Charles Schenck and Elizabeth Baer were convicted for violating the act by distributing leaflets that claimed the draft unconstitutional and was akin to “involuntary servitude” (Schenck v. United States, n.d.). The conviction was upheld by the Supreme Court due to Schenck and Baer’s actions providing a “clear and present danger” which the government has the constitutional ability to block (Asp, n.d.). A similar decision occurred with Debs v. United States ( 1919) . Eugene V. Debs, a popular socialist politician, was sentenced to ten years in prison for condemning the involvement of the United States in the first World War. Debs claimed protection under the First Amendment, but it was not accepted as Debs’ statements were considered, again, a clear and present danger due to them potentially causing resentment towards the draft (Dow, n.d.). Many were indicted through the Espionage Act, though as time passed, there was controversy over its small scope and high leniency as the first World War continued its drastic impact on the United States. The case that tipped the balance towards a stronger Espionage Act was an indictment to Ves Hall. Hall was a rancher in rural Montana who expressed plans to desert if he were drafted, that Germany would win the war, and that Woodrow Wilson was a corrupt president (Galison, 2010) . Hall’s prosecution had broad support from the press and the public. However, Hall was acquitted in the district court as the judge at the time decided that as Hall was in a remote village of 60 people and was miles and miles away from any military presence, and therefore his words did not present any threat to the United States: “…[Hall’s] verbal assault was so distant from its target that there simply was no plausible case to be made for interference with military operations or recruitment” (Ibid.). After Hall’s acquittal, in addition to other acquittals or lenient sentences, desire from American nationalists and supporters from the war increased for an expansion of the Espionage Act to be able to effectively punish and deter disloyalty (Ibid.; Gutfeld, 1968, pg. 169). An amendment was added to the Espionage Act, the Sedition Act of 1918, which rather than merely prohibiting the sharing of a document that could jeopardize American security, instead makes any “disloyal, profane, scurrilous, or abusive language” expressions towards the government, the Constitution, the military, or the flag a federal offense (The Espionage and Sedition Acts, 2021) . Eventually, the early 20th century war-era acts were reversed by the 1964 case Brandenburg v. Ohio. In the case, Clarence Brandenburg, a member of the Ku Klux Klan, was having a meeting where he planned a demonstration on Washington, D.C. Brandenburg was convicted to ten years in prison for advocating crime and terrorism (Walker, n.d.). When the case went to the Supreme Court, the Court unanimously decided to overturn Brandenburg’s conviction (Ibid.). The Court stated: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, 1969) . As a result, this gave political dissenters a greater ability to express their beliefs despite whatever position towards the United States Government they may have. Even with Brandenburg’s “imminent lawless action” rule did not completely dissolve the Espionage Act, however. As the Cold War became a more prominent conflict in the 20th century, the Espionage Act was used to justify convictions of American citizens who shared sensitive information about the United States’ research into atomic bombs (DeWitt, 2016, pg. 124). Henceforth, citizens who had access to sensitive information would have their speech limited, in order to protect national security, and it is this interpretation of the Espionage Act which the United States government uses to justify convictions towards “whistleblowers”—Edward Snowden and Chelsea Manning for example—in the present day (DeWitt, 2016, pg. 127; Greenwald, 2013; Volokh, 2018) . Other exceptions to freedom of the press exist. One example is that of obscenity. In 1973, the case Miller v. California, publisher Marvin Miller was prosecuted for mailing advertisements considered obscene (Hudson, n.d.). The Supreme Court acquitted Miller of the charge and established a three-part test—the Miller test— to decide whether an expression is obscene or not: “Whether the average person…would find the work…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” (Marvin MILLER, Appellant, v. State of CALIFORNIA., 1973) . Defamation is another exception, of which the 1964 case New York Times v. Sullivan is an example. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.). The Supreme Court reversed the motions of the previous courts that defended Sullivan and Justice William J. Brennan Jr. Opined for the majority: “[We] consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open…” allowing even for “…vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials” (Hudson Jr, n.d.). With this defense, however, limits could be enforced if the expression is made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v. Sullivan, 376 U.S. 254, 1964) . Lastly, there is a limit as to what extent the press can protect their reporters’ confidentiality, and this was established in the 1972 case Branzburg v. Hayes (Tom McInnis, n.d.). Reporter Paul Branzburg published a story about drug use and the Black Panthers. Branzburg was asked to testify on the illegal activity and Branzburg refused due to the confidentiality he promised his sources. The Supreme Court decided that, as the information was relevant to a criminal investigation, reporters are obligated to testify on that information (Ibid.). The Court states: “The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege…” (Branzburg v. Hayes, 1972) .
Freedom of the Press		The right is explicitly stated in the Constitution, though challenges and questions towards it have arisen throughout the United States’ legal history. One of the first such challenges were the Alien and Sedition Acts of 1798, which came about out of an increasing aversion towards disloyalty brought about by fears of France’s potential invasion of the United States (Batten, 2010). Signed by John Adams, the acts allowed for the deportation of immigrants originating from a country that the United States was currently at war with, and, crucially, gave the government the ability to punish those who “…shall write, print, utter or publish…any false, scandalous and malicious writing or writings against the government of the United States…” (Congress, 1845). According to Douglas Bradburn, “The clamor against the Alien and Sedition Acts was broad, important, and deeply consequential”, with Thomas Jefferson leading the backlash (Bradburn, 2008, pg. 567). The political and public reaction to curtailments of the first amendment, including the right to freedom of the press were strongly antagonistic from the beginning. The 1964 Supreme Court decision in New York Times v. Sullivan further shows the commitment towards this right. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.). Later in 1971 the Supreme Court decided on New York Times Co. V. United States, again in favor of the publication. Sensitive documents about the United States’ involvement in the Vietnam War, named the “Pentagon Papers”, were shared with the publication and the New York Times published it to which the government responded by filing suit, under the justification of prior restraint, a rule that allows the government the ability to review the publication of material and prevent its publication under their discretion (Robertson, n.d.). The Court decided that regardless of the sensitive nature of the documents, the right to free expression and freedom of the press trumped the harm that could be had from the publication of the documents (Ibid.). Bradburn, D. (2008). A Clamor in the Public Mind: Opposition to the Alien and Sedition Acts. The William and Mary Quarterly, 65(3), 565–600. Congress, U. S. (1845). Public Acts of the Fifth Congress, Second Session, Chapter 74. In New York Times v. Sullivan (1964). (n.d.). LII / Legal Information Institute. Retrieved July 7, 2021, from https://www.law.cornell.edu/wex/new_york_times_v_sullivan_(1964) Robertson, S. (n.d.). New York Times Co. V. United States. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/505/new-york-times-co-v-united-states Wermiel, S. (n.d.-b). New York Times Co. V. Sullivan. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/186/new-york-times-co-v-sullivan
Freedom of the Press		Freedom of the press, and the extent to which it is present, varies widely around the globe. Reporters without Borders is an international non-profit and NGO that maintains a yearly Press Freedom Index that gives some clues on where on the globe freedom of the press is most and least prevalent. This index is the largest of its kind and is frequently used to gauge levels of press freedoms across different countries. The index is based on multiple indicators, including a country’s Constitutional protections, legal precedents, treatment of journalists, and media landscape. The official definition of press freedom used by RWB is “Press freedom is defined as the ability of journalists as individuals and collectives to select, produce, and disseminate news in the public interest independent of political, economic, legal, and social interference and in the absence of threats to their physical and mental safety.” (Reporters without Borders). Europe and the European Union maintain the best freedom of the press found worldwide according to RWB. Norway has topped the Press Freedom Index for the past 2 years for a few reasons. Article 100 of Norway’s constitution allows freedom of expression in Norway (Constitution of the Kingdom of Norway). This was updated in 2006 from the old language which stated, “There shall be freedom of print” to “there shall be freedom of expression” (Rolland, 2010). 200 years ago, when Norway was drafting their Constitution, freedom of the press was essentially freedom of the print, as that was the chief media technology in 1814 (Rolland, 2010). This means that when the technology of the press evolved, they didn’t have the same constitutional protections. This modernization of Norway’s constitution ensures that all forms of the press are protected by Norway’s constitution (Rolland, 2010). The other reasons Norway ranks highly is due to their strong media market with both public and private outlets, and Norway’s leaders safeguarding press freedoms. The other countries highly rated in the Press Freedom Index include Denmark, Sweden, Netherlands, Finland, Estonia, Portugal, Ireland, Switzerland and Germany. The non-European countries that are highly rated include Canada, New Zealand, Timor-Leste, Samoa, and Jamaica. To give some examples, Denmark’s constitution states “Any person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice. Censorship and other preventative measures shall never again be introduced.” (The Constitutional Act of Denmark §77). Sweden’s constitution contains The Freedom of the Press Act, which states “Freedom of the press means the freedom for everyone to express their thoughts, opinions and sentiments in print, and to publish official documents and in general communicate information on any subject whatsoever” (The Freedom of the Press Act (1949:105)). The Freedom of the Press Act was originally passed in 1766, making it the world’s first law protecting freedom of the press (Weibull, 2014). It was created after decades of censorship by Swedish monarchs and has been amended in 1810 and 1812 to abolish censorship of academic and theological publications and to affirm the principles of editorial responsibility. (Weibull, 2014). The Canadian constitution contains the Canadian Charter of Rights and Freedoms, which allows for “freedom of the press and other media of communication” (Canadian Charter of Rights and Freedoms). Countries that have high levels of press freedom have many features in common that make them secure for journalists. The Press Freedom Index analyzes five contextual indicators that are used to gauge press freedom. First off, countries with high levels of press freedom have a solid legal framework protecting freedom of the press. This includes constitutions, as well as the ability of the press to access information without discrimination. The next category is political context, which is a states current level of acceptance of journalism, a states support of journalism, and the role of the press in keeping accountability in government. To use Norway as an example, Norwegian politicians are supportive of the country’s media landscape, rather than the United States, where many politicians call the media into doubt. Economic context is also considered, which is mainly the economic constraints a state may place on the press. Sociocultural contexts can impede the press’s ability to report information on issues like gender and religion. Lastly, the safety of the press is questioned. This includes safety from physical harm, psychological harm, and professional harm (such as a journalist having their equipment confiscated). This gives an idea about what freedom of the press looks like in the countries that do their best to uphold it. Journalists are protected by the law and can investigate and scrutinize the state. The politicians in charge of the country uphold press freedom and do not interfere unjustly. The state doesn’t impose unjust economic constraints on media outlets, and journalists are safe in their line of work. This brings me to the original question, “Is [freedom of the press] protected in the constitutions of most countries today?”. I must answer that yes, it is technically protected in the constitutions of most countries today. With the exception of Eritrea and Afghanistan, which both don’t have a constitution in effect, every other country ranked lowest in the Press Freedom Index had freedom of expression/press given to the citizens in their constitution. The countries ranked highest in the Press Freedom Index have freedom of expression/press given to the citizens in their constitution or supporting constitutional documents, like the U.S. Bill of Rights and Canadian Charter of Rights and Freedoms. This leads me to believe that it must be up to a country’s leadership to protect the laws these countries have written. Syria and North Korea both give their citizens freedom of the press and freedom of expression, but the regimes in power there penalize those who try to use that right. This is an interesting paradox that exists in the constitutions of both democratic and autocratic nations. “Chapter V: Fundamental Rights and Duties of Citizens,” Socialist Constitution of the Democratic Peoples Republic of Korea, 2019. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzkp0009&collection=cow Justice Laws Website. “Canadian Charter of Rights and Freedoms.” Canada, 1982. https://laws-lois.justice.gc.ca/eng/const/page-12.html. National Archives. “The Bill of Rights: A Transcription,” November 4, 2015. https://www.archives.gov/founding-docs/bill-of-rights-transcript. “Part 1: Rights and Freedoms.” English Translation of the Syrian Constitution Modifications, 2012. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzsy0011&collection=cow Reporters without Borders. “Press Freedom Index,” 2024. https://rsf.org/en/index. Reporters without Borders. “Methodology used for compiling the World Press Freedom Index 2024,” 2024 https://rsf.org/en/methodology-used-compiling-world-press-freedom-index-2024?year=2024&data_type=general Rolland, Asle. “Modernising Freedom of Speech: The Case of Article 100 of the Norwegian Constitution.” Policy Studies 31, no. 3 (May 2010): 331–50. https://doi.org/10.1080/01442871003616008. “Section E: Human Rights,” Constitution of the Kingdom of Norway, 2023. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzno0102&collection=cow “The Constitution,” April 3, 2023. https://www.riksdagen.se/en/how-the-riksdag-works/democracy/the-constitution/. The Danish Parliament. “The Constitutional Act,” February 19, 2024. https://www.thedanishparliament.dk/en/democracy/the-constitutional-act. United States Department of State. “2023 Country Reports on Human Rights Practices.” https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/. Weibull, Lennart. “Freedom of the Press Act of 1766.” Britannica, 2014. https://www.britannica.com/topic/Freedom-of-the-Press-Act-of-1766.
Privacy Rights		Although there are various regional and international human rights treaties protecting the right to privacy, the International Covenant on Civil and Political Rights (ICCPR), as well as the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) are often regarded as the most fundamental and widely respected. Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” and Article 19 continues: (1) 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, and (b) For the protection of national security or of public order, or of public health or morals. In his paper “The Privacy Principle,” Frederic Gilles Sourgens claims that ““these two provisions make up the backbone of the human right to privacy” (351), where protection applies to any intrusion of personal information, including thoughts opinions, religious beliefs, health, relationships, and sexual encounters (Sourgens, “Privacy Principle,” 351). The ICCPR supports that the state must inform persons of reason of intrusion in non public spaces, as well as the nature of the information collected, but may intrude “to the extent proportionate with specific threats” (Sourgens, “Privacy Principle,”353). The ICCPR “explicitly distinguishes between the obligations to respect and to ensure human rights, while the ECHR speaks…only of the obligation to secure in the actual text” (Milanovic “Privacy in the Digital Age,” 102). Additionally, Article 2(1) of the ICCPR claims that states are responsible for “all individuals within its territory and subject to its jurisdiction” (Milanovic “Privacy in the Digital Age,” 101). Although there are frameworks within the treaties that support the protection of privacy, there are many limitations to the legislation itself. The primary flaw is that the interpretation of ‘jurisdiction’ and ‘territory’ are contested by states (Milanovic “Privacy in the Digital Age,”101). The common conception is that human rights instruments are purely territorial, however, intelligence programs often operate outside the territory of signatory states (Sourgens, “Privacy Principle,” 353). The International Court of Justice (ICJ) has ruled that “States parties to the Covenant should be bound to comply with its provisions”, (Sourgens, “Privacy Principle,”353) with regional treaties such as the ECHR and American Convention on Human Rights (ACHR) respecting this claim (354). However, many states reject this extraterritorial application of privacy protection, arguing that treaty rights only apply within the sovereign territory of signatory states (Sourgens, “Privacy Principle,” 356). Historically, the US and other states had not expressed a clear view on the territorial scope of ICCPR (Milanovic “Privacy in the Digital Age,” 103), with the US eventually stating that there is a default presumption against extraterritorial application of the treaties in 1995 (Milanovic “Privacy in the Digital Age,”105). Additionally, countries such as China are not a party to the ICCPR or other treaties with privacy protections, and do not have domestic laws to restrict government surveillance powers (Sourgens, “Privacy Principle,” 358). Russia has also attempted to counteract rulings of the European Court using domestic legislation, and France similarly minimized its basic privacy protections after the 2015 mass shootings in Paris (Sourgens, “Privacy Principle,” 358). The COVID-19 pandemic has also placed national surveillance at the forefront, as governments and research institutions use location data to keep track of cases (Zwitter and Gstrein, “Big Data,” 2). Location data is collected through phone network, wifi connections, and satellite based radio navigation (GPS) (Zwitter and Gstrein, “Big Data,” 2). Article 15 of the ECHR was updated in December 2019 to allow states to derogate in situations of: (1) war or other public emergency threatening the life of the nation, (2) taking measures which are strictly required by the exigencies of the situation, and (3) provided that measures are not inconsistent with other obligations under international law (Zwitter and Gstrein, “Big Data,” 3). Data protection and privacy are included in those rights that are subject to derogation during times of crises (Zwitter and Gstrein, “Big Data,”3). Data ownership, such as location tracking, is a matter of contract law and is often included in the terms of use, leaving the legality of the practice to individual consent (Zwitter and Gstrein, “Big Data,” 3). The conclusion that Zwitter and Gstrein come to is that there is a “lack of dedicated legal frameworks to address the use of data in times of political crisis” (Zwitter and Gstrein, “Big Data,”4), therefore allowing for the infringement of privacy rights despite the existence of international and regional treaties. REFERENCES: Sourgens, Frederic Gilles. “The Privacy Principle.” Yale Journal of International Law, 42(2), 345-408, 2017. Milanovic, Marko. “Human rights treaties and foreign surveillance: privacy in the digital age.” Harvard International Law Journal, 56(1), 81-146, 2015. Zwitter, Andrej and Gstrein, Oskar J. “Big data, privacy and COVID-19 – learning from humanitarian expertise in data protection.” Int J Humanitarian Action 5, (4), 2020.
Privacy Rights		The right to privacy is not explicitly contained in the United States Constitution. REFERENCES: Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy
Privacy Rights		Most recent US legislation regarding the right to privacy concerns the collection, retention, and transfer of personal data. Under the Department of Justice, the Office of Privacy and Civil Liberties (OPCL) enforces privacy laws, recommends privacy policies (including exceptions), and responds to data breaches (Office of Privacy and Civil Liberties, n.d.). Freedom of Information Act 1966 (as amended 2016) In 1966, Congress passed the Freedom of Information Act (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. However, nine exemptions and three exclusions may prevent access to these records (Freedom of Information Act, n.d.). The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA (Freedom of Information Act, n.d.). The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d.). The nine exemptions prevent the sharing of information if it is classified for national security, part of internal rules or practices, prohibited through other laws (such as the Privacy Act, see below), a trade secret, legally protected, a medical file, law enforcement records, regarding bank supervision, or locational information (Freedom of Information Act, n.d.). FOIA was most recently updated with the FOIA Improvement Act of 2016, which increased transparency and altered procedures (OIP Summary of the FOIA Improvement Act of 2016, 2016). Privacy Act 1974 The Privacy Act of 1974 was an effort to balance the “governments’ need to maintain information” and the “rights of individuals to be protected against unwarranted invasions of their privacy” (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). It prevents agencies from disclosing records to any person or agency unless it falls into one of the twelve approved guidelines (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). The most used reasons which allow for disclosure are subsections 1, 2, and 3 of 5 US Code § 552a(b) (Overview of the Privacy Act: 2020 Edition, 2021). Subsection One allows for the disclosure of information between agencies on a need-to-know basis. Subsection Two allows the FOIA to overrule the Privacy Act with regards to when to disclose information. Subsection Three allows for disclosure to another party if their use is similar to the use for which the data was originally collected. This third exception is quite broad, which causes controversy (Overview of the Privacy Act: 2020 Edition, 2021). Other exceptions include use for public record (used for the Census or National Archive data), or requests by law enforcement or the court system. In addition to putting forth information disclosure guidelines, this act requires agencies to keep accurate records of how, where, and why they sent information if they had sent information (Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). Gramm-Leach-Bliley Act 1999 The Gramm-Leach-Bliley Act (GLBA) was passed to regulate the transfer of consumers’ “nonpublic personal information” by financial institutions (FDIC, 2021). At its core, the law says financial institutions cannot pass along personal data to third parties unless the customer is put on notice, given the opportunity to opt out, and they do not opt out (FDIC, 2021). Exceptions to this rule appear in Sections 13-15 (FDIC, 2021, VIII-1.3). Section 13 permits the transfer of some personal data to a third party if they are performing services on behalf of the financial institution, but they must be contractually bound to not do anything else with the data (FDIC, 2021, VIII-1.3). Section 14 allows the bank to disclose information as needed to perform banking functions initiated by the customer, while Section 15 extends that disclosure to normal financial institution acts, such as fraud detection (FDIC, 2021, VIII-1.3). Of these exceptions, only Section 13 requires the customer to be notified that their information is being shared (FDIC, 2021). USA PATRIOT Act 2001 & USA Freedom Act 2015 Enacted less than two months after the 9/11 attacks, the PATRIOT Act was passed with the intention of increasing homeland security by allowing surveillance techniques used in local crime to be used to fight terrorism (Highlights of the USA PATRIOT Act, n.d.; USA PATRIOT Act, n.d.). Most importantly, this law allowed for the sharing of information between law enforcement agencies at various levels without notice (Highlights of the USA PATRIOT Act, n.d.). This law wasn’t the most protective of civil rights and liberties and to rectify that President Obama signed the USA Freedom Act in 2015, ending government collection of metadata (Patriot Act, n.d.; Fact sheet, 2015). REFERENCES: Fact sheet: Implementation of the USA Freedom Act of 2015. (2015, Nov. 27). Central Intelligence Agency. https://www.intelligence.gov/index.php/ic-on-the-record-database/results/787-fact-sheet-implementation-of-the-usa-freedom-act-of-2015 Federal Deposit Insurance Corporation (FDIC). (2021, April). FDIC Consumer Compliance Examination Manual: VIII-1.1 Gramm-Leach-Bliley Act. Author. https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/index.html Freedom of Information Act, 5 U.S.C. § 552. (1966). Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx Highlights of the USA PATRIOT Act. (n.d.) Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/archive/ll/highlights.htm Office of Privacy and Civil Liberties. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/opcl OIP Summary of the FOIA Improvement Act of 2016. (2016, Aug. 17). Department of Justice. https://www.justice.gov/oip/oip-summary-foia-improvement-act-2016 Overview of the Privacy Act: 2020 Edition. (2021, Feb. 16). Department of Justice. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties Patriot Act. (n.d.) History.com. Retrieved Sept. 14, 2021, from https://www.history.com/topics/21st-century/patriot-act Privacy Act of 1974. 5 U.S.C. § 552a. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1279#vf4tzl Privacy Act, 5 U.S.C. § 552a(b). (1974). USA PATRIOT Act. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1281 Walls, T. (n.d.). FOIA v. Privacy Act: A comparison chart. IAPP. https://iapp.org/resources/article/foia-v-privacy-act-a-comparison-chart/
Privacy Rights		In the United States, the right to privacy was not originally codified but established through Supreme Court cases around the 1960s (Privacy, n.d.). Prior to this time, the Court recognized in Snyder v. Massachusetts (1934) that some concepts of fairness are fundamental, but not expressed. In 1965, the Court heard and decided Griswold v. Connecticut. In the majority opinion, Justice William Douglas argues that the Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11). Later in the opinion of the court, he states that in other cases, such as Boyd v. United States (1886), Mapp v. Ohio (1961), and Poe v. Ullman (1961), the court used the ‘penumbras’ of the First, Third, Fourth, Fifth, and Ninth Amendments to make decisions on implicit liberties (Griswold v. CT, 1965, pars. 14-15). Combined, these penumbras create what the Griswold v. Connecticut majority opinion calls “zones of privacy” (Privacy, n.d.). In a concurring Griswold opinion, Justice Arthur Goldberg argues that while liberties extend beyond the Bill of Rights, he, Chief Justice Earl Warren, and Justice William Brennan feel that the Due Process Clause of the Fourteenth Amendment does not include “all of the first eight amendments” (Griswold v. CT, 1965, par. 21). However, in a different concurring opinion, Justice John Marshall Harlan found “[t]he Due Process Clause of the Fourteenth Amendment stands […] on its own bottom” (Griswold v. CT, 1965, par. 53; Privacy, n.d.). Justice Harlan’s concurring opinion became the predominant argument used in later privacy cases (Privacy, n.d.). In 1967, the Supreme Court decided the case of Katz v. United States (Katz v. US, n.d.). Katz, located in Los Angeles, had been using a public phone booth to inform bettors in Boston and Miami, and in an effort to convict him, federal agents tapped the phone booth (Katz v. US, n.d.). A lower court allowed this evidence to be admitted, but Katz claimed it was a violation of the Fourth Amendment (Katz v. US, n.d.). The Supreme Court sided 7-1 with Katz and establishes that “the Fourth Amendment protects people, not places” (Katz v. United States, 1967). In a concurring opinion, Justice Harlan established the Expectation for Privacy Test (Katz v. US, n.d.; Expectation of Privacy, n.d.). This test is two-fold – the individual must have an expectation for privacy which is rooted in law and society finds that expectation for privacy to be reasonable – and has been used as a basis for privacy since (Expectation of Privacy, n.d.). After these two cases, the Supreme Court has continued to extend the right to privacy, notably so in three landmark cases: Eisenstadt v. Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) through the use of the Fourteenth Amendment and Justice Harlan’s concurring Griswold opinion (Privacy, n.d.). Eisenstadt extended the use of contraceptives beyond married couples to individuals (Privacy, n.d.). Roe extended the right to privacy to the women’s right to have an abortion (Privacy, n.d.). Lawrence v. Texas' overturned Bowers v. Hardwick (1986) and extended privacy to private conduct (Privacy, n.d.). REFERENCES: Expectation of Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 13, 2021, from https://www.law.cornell.edu/wex/expectation_of_privacy Griswold v. Connecticut, 381 U.S. 479 (1965). https://www.law.cornell.edu/supremecourt/text/381/479 Katz v. United States. (n.d.). Oyez. Retrieved September 13, 2021, from https://www.oyez.org/cases/1967/35 Katz v. United States, 389 U.S. 347 (1967). https://www.law.cornell.edu/supremecourt/text/389/347 Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy Snyder v. Massachusetts, 291 U.S. 97 (1934). https://www.law.cornell.edu/supremecourt/text/291/97
Privacy Rights		The right to privacy is a widely accepted right throughout the world. Currently, 186 constitutions around the globe include the right to privacy. Within these constitutions however, there are discrepancies in the language and what is considered to fall under the ‘right to privacy’ umbrella. In the most obvious cases, there is a considerable differentiation between the age of the constitutions being compared. For example, the United States has maintained the same Constitution since 1789 with its last alteration being the 27th Amendment in 1992. Privacy, however, was addressed in the 4th Amendment in 1791 which states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”(U.S. Constitution- Fourth Amendment). While formal alterations or additions to the US Constitution have been relatively scarce, the United States legal system, as it pertains to the Constitution, has evolved. Through judicial review, the Supreme Court has applied interpretations to the original document. We see this instance in the 1960 Supreme Court Case Griswold v. Connecticut. This landmark case ruled that the Constitution protected the right of marital privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)). This provides insight on how the US addresses rights, like the right to privacy, that are not explicitly stated in the Constitution. Looking at other countries suggests some of the range of approaches to the right to privacy. For an alternate example we can look to the current constitution of Albania. Albania’s active constitution was ratified in 1998 with the latest modification being made in 2016. Articles 35-37 of the constitution addresses the right to privacy in much broader scope than the United States, “No one may be obliged, except when the law requires it, to make public the data connected with his person,” (Constitute Project 2020) “The freedom and secrecy of correspondence or any other means of communication are guaranteed,” and “The inviolability of the residence is guaranteed.” (Constitute Project 2020) More is included within these articles but the three main points address the “data,” the communication, and the residence of the individual. Clearly, the language used in Albania’s constitution applies to a lot more aspects of one's privacy than the language used in the US constitution. With that said, the structure of Albania’s government differs from that of the United States, especially when it comes to the judicial system. Albania has a Supreme Court and a Constitutional Court. The latter is responsible for interpreting “the compatibility of international agreements with the mandates of the Constitution prior to their ratification; verifies compliance with the Constitution in legislative acts passed by local, regional and central government bodies; and adjudicates individual citizens’ claims of constitutional rights breaches and violations,” (“Researching the Albanian Legal System” 2019). Furthermore, “Judicial review by the Constitutional Court may be requested upon petitions submitted by the President of the Republic, the Prime Minister, 1/5th of Parliament’s members, the Head of High State Control as well as any lower court,” (“Researching the Albanian Legal System” 2019). A specific example of this occurred in 2008 as law no. 9887, “On Protection of Personal Data,” expanded and defined privacy rights as it pertained to personal data. This was brought forward by the Council of Ministers, which falls under the executive branch of the Albanian government. This same law was then subsequently amended in 2012 and 2014 to modify the right to privacy in an era of technology. We can see these protections in action as six different multinational companies were fined in April of 2024 for violating Albania's privacy rights (“Albania” 2024). In Albania, there are more avenues for other branches of government to directly bring forward issues of constitutionality and, as we have seen with law no. 9887, propose new legislation meant to refine or analyze contemporary applications of constitutional law. Additionally, justices, for both the Supreme Court and Constitutional Court, serve for a single term of 9 years. This is just another factor in how constitutional rights are interpreted and applied. In 2020, Algeria enacted its current constitution which shares similar constitutional provisions on the right to privacy. In articles 47 and 48 it confirms that, “Every person shall have the right to the protection of his honor and private life. Every person shall have the right to the confidentiality of his correspondence and private communications in all their forms…The protection of individuals when handling personal data shall be a fundamental right.” (Constitute Project 2020). Another longstanding constitution, that of the Kingdom of the Netherlands, was originally enacted in 1814 but has been subsequently amended up until the year 2008. Articles 10, 12, and 13 state, “Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament,”(Constitute Project 2020) “Entry into a home against the will of the occupant shall be permitted only in the cases laid down by or pursuant to Act of Parliament, by those designated for the purpose by or pursuant to Act of Parliament,”(Constitute Project 2020) and “The privacy of correspondence shall not be violated except in the cases laid down by Act of Parliament, by order of the courts. The privacy of the telephone and telegraph shall not be violated except, in the cases laid down by Act of Parliament, by or with the authorization of those designated for the purpose by Act of Parliament.” (Constitute Project 2020) Again, there is more included within the official articles, but the main points are delivered. Communication and residence are clearly stated but one's data, as proclaimed by the previous two constitutions, is not explicitly stated. We can also look towards Somalia’s constitution which was enacted in 2012 that states, “The home and other dwellings of the person shall be inviolable, and their entry, search or surveillance shall not be allowed without a reasoned order from a judge. Any such order must be read properly to the occupier of the dwelling before entry, and the inspecting authority is prohibited to violate the law,” (Constitute Project 2020). Here, the right to privacy explicitly secures one’s home but not much else. How one’s “other dwellings” are officially defined is not included in the country’s constitution. So, in looking at these examples, and various others, it is hard to definitively define the extent of one's “right to privacy” as there is no international consensus and the language used in many constitutions worldwide are not cut and dry. Furthermore, while the age of a country’s constitution may be a factor, how their political system is structured is also an important consideration when determining the scope of this right. References: Congress.gov. 2022. “U.S. Constitution - Fourth Amendment - Resources - Constitution Annotated - Congress.gov - Library of Congress.” Constitution.congress.gov. Constitution Annotated. 2022. https://constitution.congress.gov/constitution/amendment-4/. “Researching the Albanian Legal System.” n.d. GlobaLex - Foreign and International Law Research. Accessed July 30, 2024. https://www.nyulawglobal.org/globalex/Albania1.html#thejudi. “Albania.” n.d. DataGuidance. Accessed July 30, 2024. https://www.dataguidance.com/jurisdiction/albania. Read. 2020. “Read about ‘Right to Privacy’ on Constitute.” Constituteproject.org. 2020. https://www.constituteproject.org/constitutions?key=privacy. Griswold v. Connecticut, 381 U.S. 479 (1965)
Voting Rights and Suffrage		The right to vote has developed into an international norm over the past several decades, one often made an element of national constitutions. The widespread suffrage we see today was achieved through the struggle of advocates for democracy around the globe. Other political forces, beyond national constitutions, have also guided the global development of voting rights, to some degree. International and regional conventions on human, civic, and political rights further encourage states to protect their citizens’ right to vote. Examples include The Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR), and the Organization of American States (OAS), to name just a few. (Kirshner, 2003) Though ambitious, such conventions are rarely legally binding, thus lacking enforcement. Furthermore, they present a general framework that allows national governments to find and exploit loopholes based on their own interests, should they desire to do so. A government’s motivation plays a key role in how it implements voting rights. While we typically think of suffrage as a way of empowering citizens, it functions just as easily as a tool of legitimation to counter both domestic and international criticism. The latter function is common in “anocratic” states that blend democracy with authoritarianism, and can use voting rights as an attempt to gain clout and legitimacy in the global arena. (Global Citizen) References: Global Citizen. “What Democracy and Voting Rights Look Like Around the World.” n.d. Global Citizen. Accessed June 9, 2021. https://www.globalcitizen.org/en/content/its-2016-here-is-the-state-of-voting-rights-around/. Kirshner, Alexander. 2003. “The International Status of the Right to Vote.” Democracy Coalition Project.
Voting Rights and Suffrage		Voting rights, while not directly detailed in the original United States Constitution, have been addressed through several amendments. Originally, the status of voting was defined as the manner of choosing members of Congress – voting directly for the House of Representatives and indirectly for Senators who were appointed by the legislature. Article I, Section II of the Constitution details: “The House of Representatives shall be composed of members chosen every second Year by the People of the several States” and Article I, Section III dictates: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.” Overall, it was states that held the authority to create voting eligibility rules to the House of Representatives and to state legislatures that would choose Senators. Further amendments reflect the evolving understanding and expansion of democratic participation in the United States. The 15th Amendment, ratified in 1870, states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” (U.S. Const. amend. XV). This amendment was a direct response to the end of the Civil War and the abolition of slavery, aiming to enfranchise Black men. It serves as the first explicit constitutional guarantee of voting rights, targeting racial discrimination. In 1920, states ratified the 19th Amendment, which significantly expanded the electorate by protecting voting rights for women. The amendment states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex” (U.S. Const. amend. XVIIII). The next consequential change in the Constitution to address voting rights is the 24th Amendment of 1964. It dictates, “The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax” (U.S. Const. amend. XXIV). This means that economic barriers such as poll taxes are not allowed in federal elections, ensuring that financial constraints would not impede the right to vote. Finally, the 26th Amendment of 1971 decides, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age” (U.S. Const. amend XXVI). The primary motivation in lowering the voting age from 21 to 18 years old was the argument that if individuals are old enough to be drafted for military service, they should also have the right to vote. These amendments exemplify the American public’s evolving stance on voting rights and eligibility, moving from a general framework to explicit protections against specific forms of disenfranchisement. References U.S. Constitution. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm.
Voting Rights and Suffrage		While certain amendments explicitly address voting rights, the broader interpretation of voting rights as being implicit in the United States Constitution has evolved significantly through judicial decisions and legislative actions. The Supreme Court and other judicial bodies have played a critical role in interpreting these rights and ensuring their protection. The Voting Rights Act of 1965 was a pivotal piece of legislation in the fight to protect voting rights. It aimed to overcome legal barriers at the state and local levels that prevented Black Americans from exercising their right to vote as guaranteed under the 15th Amendment. However, the 2013 Supreme Court Case Shelby County v. Holder successfully challenged the constitutionality of parts of the VRA. The case disputed the constitutionality of Section Four (the Coverage Formula) and Section Five (Preclearance of Changes in Election Laws) of the VRA, which outlined a mandate for states with a history of racial discrimination in voting to “pre-clear” changes in the election process with the Justice Department (Congressional Research Service 2015, 16). The attorneys believed these mandates impeded states’ rights to determining voter eligibility. Ultimately, they won based on an argument that the coverage formula was outdated (Congressional Research Service 2015, 1). The constitutions that do make explicit references to voting rights are state constitutions. Whereas the US Constitution utilizes negative mandates to govern who the government may not disenfranchise, state constitutions directly list who is eligible to vote (Douglas 2014, 89). Article I, Section 2 of the United States Constitution grants states the power to determine voting eligibility (Douglas 2014, 90). Former Supreme Court Justice Scalia asserted that the Elections Clause “empowers Congress to regulate how federal elections are held, but not who may vote in them” (Douglas 2014, 91). What provides this implication of voting rights is that “the U.S. Constitution mentions individual voting rights seven times – in Article I, Section 2 and in the Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments – but none of those provisions actually grant a right to vote to U.S. citizens” (Douglas 2014, 95). The interpretation of voting rights as implicit in the Constitution has been significantly shaped by judicial decisions and expanded understanding of constitutional amendments. Legislative actions, such as the Voting Rights Act, have further reinforced these rights, although challenges and debates continue regarding their scope and protection. These elements underscore the Constitution’s role in both explicitly and implicitly protecting the right to vote as a pillar of democracy. References Congressional Research Service. “The Voting Rights Act of 1965: Background and Overview.” (2015). https://crsreports.congress.gov/product/pdf/R/R43626/15#:~:text=The%20Voting%20Rights%20Act%20was,preclearance%20of%20new%20laws%20in. Douglas, J. “The Right to Vote Under State Constitutions.” Vanderbilt Law Review 89: 89-149 (2014). https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/1. Persily, N and Mann, T. “Shelby County v. Holder and the Future of the Voting Rights Act.” Brookings (2013). https://www.brookings.edu/articles/shelby-county-v-holder-and-the-future-of-the-voting-rights-act/. U.S. Constitution. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm.