Source/Freedom of Expression

Legal Codification

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

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

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

Limitations / Restrictions

Under American jurisprudence, what permissible exceptions exist?

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

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

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

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

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

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

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

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

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

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

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

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

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

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

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

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

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

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