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The expression of thoughts, ideas, art, entertainment, and more started long before their rights were explicitly proclaimed or protected. The oldest piece of art archeologists have discovered dates back 45,000 years (Cascone, 2021). Archeologists have found objects from 400,000 years ago that “would probably have required a level of symbolic communication close to that of language.” Hunter gatherer societies had religion of their own (Peoples et al., 263, 2016). But while humans have been expressing themselves for millennia, the protection of their expression has not always been existent – especially when the content of their expression offends or hurts another party in some way.
David Konstan cited Arnaldo Momigliano, who explained: “In the second part of the fifth century and during the greater part of the fourth century every Athenian citizen had the right to speak [in the assembly] unless he disqualified himself by certain specified crimes.’ This freedom was, according to Momigliano, ‘an Athenian fifth-century idea’, and the term that best expressed it was parrhêsi” (Konstan, 1, 2012). However, as David Konstan argues, parrhesia was less of a “right” and more of a “license to express one’s views, whatever the context.” Athenian citizens understood it as “an expectation, a feature of social life.” Konstan compares the ideal to an American citizen who proclaims “This is a free country, isn’t it?” in response to “an attempt to silence them” (Konstan, 4, 2012). However, as evidenced by the trial of Socrates, this ideal is not always protected by law when the idea contradicts beliefs espoused by the community – for Socrates’ case, questioning the gods and thus “corrupting the youth.” On this trial, some “authors affirm the view of Athens as fundamentally tolerant, with Socrates’ trial, ‘the decision to prosecute an old man for saying and doing what he had been saying and doing for so many years,’ as an aberration, perhaps brought about by ‘the wounds of recent history’”, the recent history being the violent tyranny of the Thirty set in place by the victorious Spartans after the Peloponnesian War (Saxonhouse, 102, 2006). Socrates’ teaching of Critias caused a stir in Athens, likely contributing to his prosecution more on his association rather than the content of the expression itself.
The events of the Enlightenment were essential to rights themselves and the development of expression among them. Expression can be understood as the dissemination of someone’s thoughts, thus touching on the ideals of individual ownership of self and self-agency. Locke defines freedom in his Essay Concerning Human Understanding as the “Power in any Agent to do or forbear any particular action, according to the determination or thought of the mind, whereby either of them is preferred to the other” (Locke, 303, 1690). Voltaire was one of the more prolific writers of the era, consistently firing back publicly and publishing satires. He was one of the most influential thinkers in the Enlightenment because of his willingness to challenge the status quo and stretch speech rights into the categories of the offensive, which inspired critique and dissension from others. In one of his dialogues, Voltaire said, “People say stupid and insulting things, but must speaking be forbidden? Everybody can write what they think in my country at their own risk…If it finds that you have spoken foolishly, it boos you; if seditiously, it punishes you; if wisely and nobly, it loves you and rewards you…Without the freedom to explain what one thinks, there is no freedom among men” (Voltaire, 140, 1994). The Enlightenment transformed the conception of rights for the Western world, and led ultimately to the important declarations of the rights to expression found in revolutionary documents.
The first guarantee of expression was speech in the English Bill of Rights of 1689. Among the guarantees were rights found in the American First Amendment, including “the right to petition and freedom of speech and debate” (Vile, “English Bill of Rights”, 2009). The Massachusetts Body of Liberties in 1641 and the adoption of the Virginia Bill of Rights were early American colonial legislatures’ expression of the rights of free press and speech (FIRE, “History of Free Speech”, 2022). The first 10 amendments to the Constitution of the United States include the First Amendment – that “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” (National Archives, “The Bill of Rights: A Transcription”, 2023). All of these are tenets of free expression – they protect the people from prosecution of the state for expression or behaviors that counter state interests. In France, similar revolutionary ideals took form in the Declaration of the Rights of Man and Citizen in 1789, which states that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law” (Yale Law Library, “Declaration of the Rights of Man – 1789”, 2008). These early expressions of the law include important things – that the government cannot restrict it, but most agreed that there are circumstances where free expression does not apply.
To understand the idea of free expression, it is important to understand accepted exceptions to the expressed First Amendment right. Among these, the government has permitted laws which prohibit certain types of speech in specific times, places, and locations – such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property” (O’Neill, “Time, Place, Manner Restrictions”). Any restriction of this kind has to pass “a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989)…The regulation must be content neutral…It must be narrowly tailored to serve a significant governmental interest…It must leave open ample alternative channels for communicating the speaker’s message.” In this case, the Supreme Court ruled that New York City officials could control the volume of amplified music at rock concerts in Central Park without violating the First Amendment” (Hudson, “Ward v. Rock against Racism, 2009). The government may also restrict speech which falls into the categories of “incitement, defamation…obscenity, child pornography…and threats” (Volokh, “Permissible Restrictions on Expression”, 2023). The Supreme Court ruled on restrictions of incitement – defined as “speech [that] is forbidden because it incites, or is likely to lead to, violence or illegal actions” – in the landmark decision in Brandenburg v Ohio (Vile, “Incitement to Imminent Lawless Action”, 2009). In this case, Brandenburg, a member of the KKK, was convicted under Ohio law for statements that “alluded to the possibility of “revengeance” (sic) in the event that the federal government and Court continued to “‘suppress the white, Caucasian race.” The Supreme Court overturned the conviction and held that “advocacy could be punished only ‘where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Walker, “Brandenburg v Ohio”, 2009). The second exception to free expression is defamation. Defamation deals with two types of tort action “that encompasses false statements of fact that harm another’s reputation”: libel and slander. Libel “generally refers to written defamation, while slander refers to oral defamation, though much spoken speech that has a written transcript also falls under the rubric of libel.” In New York Times Co. v Sullivan, the New York Times published an article with factual errors about protests occurring in Alabama. In the case, “The Court reasoned that ‘erroneous statement is inevitable in free debate’ and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court also established what has come to be known as ‘the actual malice rule’.” This rule says that the offended party “must prove by clear and convincing evidence that the speaker made the false statement with ‘actual malice’ — defined as ‘knowledge that it was false or with reckless disregard of whether it was false or not’” (Hudson, “Defamation”, 2020). The third and fourth exceptions are obscenity and child pornography. Obscenity “refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value” (Hudson, “Obscenity and Pornography”, 2009). The test for obscenity comes from Miller v California, a case where “the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials.” The test in this case has three parts: “‘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’” (Hudson, “Miller v. California”, 2009). The last exception to the first amendment is true threats. The test case for this exception is Virginia v Black, where a statute banning crossburning was upheld in the state of Virginia. The court’s reasoning was “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death’” (O’Neill, “True Threats”, 2017). These exceptions to the first amendment illustrate that the right is not absolute in American jurisprudence, and the intent and manner of the speech – as illustrated above – weighs heavily in whether or not it is permissible.
References:
“The Bill of Rights: A Transcription.” 2023. National Archives and Records Administration. National Archives and Records Administration. April 21. https://www.archives.gov/founding-docs/bill-of-rights-transcript#:~:text=Amendment%20I-,Congress%20shall%20make%20no%20law%20respecting%20an%20establishment%20of%20religion,for%20a%20redress%20of%20grievances.
Cascone, Sarah. 2021. “Archaeologists Have Discovered a Pristine 45,000-Year-Old Cave Painting of a Pig That May Be the Oldest Artwork in the World.” Artnet News. December 9. https://news.artnet.com/art-world/indonesia-pig-art-oldest-painting-1937110#:~:text=Archaeologists%20believe%20they%20have%20discovered,at%20least%2045%2C500%20years%20ago.
David L. Hudson, Jr. 2020. Defamation. May 14. https://mtsu.edu/first-amendment/article/1812/defamation.
“Declaration of the Rights of Man - 1789.” 2008. Yale Law School Lillian Goldman Law Library - The Avalon Project. https://avalon.law.yale.edu/18th_century/rightsof.asp.
“History of Free Speech.” 2022. The Foundation for Individual Rights and Expression. https://www.thefire.org/history-free-speech#timeline--23542--2.
Hudson, David L. 2009a. “Obscenity and Pornography.” Obscenity and Pornography. https://mtsu.edu/first-amendment/article/1004/obscenity-and-pornography.
Hudson, David L. 2009b. “Ward v. Rock against Racism.” Ward v. Rock against Racism. https://mtsu.edu/first-amendment/article/370/ward-v-rock-against-racism.
Hudson, David L. 2009c. Miller v. California. https://mtsu.edu/first-amendment/article/401/miller-v-california.
Konstan, David. 2012. “The Two Faces of Parrhêsia*: Free Speech and Self-Expression in Ancient Greece: Journal of the Australian Society for Classical Studies.” Proquest. Antichton. https://www.proquest.com/docview/1459226473?parentSessionId=2riArMLT%2B2G%2FrXHB8pHqr%2B%2FkAK%2FBkJYL8QsEw3yaHAg%3D&pq-origsite=primo&accountid=6167.
Locke, John. 1690. An Essay Concerning Human Understanding. PinkMonkey. https://pinkmonkey.com/dl/library1/book1284.pdf.
O’Neill, Kevin Francis. 2009. “Incitement to Imminent Lawless Action.” Incitement to Imminent Lawless Action. https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action.
O’Neill, Kevin Francis. 2009. “Time, Place and Manner Restrictions.” Time, Place and Manner Restrictions. https://mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.
O’Neill, Kevin Francis. 2017. “True Threats.” True Threats. https://mtsu.edu/first-amendment/article/1025/true-threats.
Peoples, Hervey C, Pavel Duda, and Frank W Marlowe. 2016. “Hunter-Gatherers and the Origins of Religion.” Human Nature (Hawthorne, N.Y.). U.S. National Library of Medicine. September. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4958132/.
Rickless, Samuel. 2020. “Locke on Freedom.” Stanford Encyclopedia of Philosophy. Stanford University. January 21. https://plato.stanford.edu/entries/locke-freedom/.
Saxonhouse, Arlene W. 2006. Free Speech and Democracy in Ancient Athens. EbscoHost. Cambridge: Cambridge University Press.
Vile, John R. 2009a. “English Bill of Rights.” English Bill of Rights. https://www.mtsu.edu/first-amendment/article/865/english-bill-of-rights#:~:text=The%20document%2C%20which%20initially%20came,U.S.%20Constitution%2C%20to%20members%20of.
Volokh, Eugene. 2023. “Permissible Restrictions on Expression.” Encyclopædia Britannica. Encyclopædia Britannica, inc. June 30. https://www.britannica.com/topic/First-Amendment/Permissible-restrictions-on-expression.
Voltaire, Frangois Marie, and David Williams. 1994. Political Writings. Cambridge University Press. Cambridge England: Cambridge University Press. https://doi.org/10.1017/CBO9781139170451.
Walker, James L. 2009. Brandenburg v. Ohio. https://mtsu.edu/first-amendment/article/189/brandenburg-v-ohio.
Debates and movements for the protection of freedom of expression are a recent development that “scarcely arose before the revolutions of the eighteenth century" (Zoller 2009, 803). But one can see that it is frequently in response to oppressive governmental measures that opposition arises to promote freedom of expression for democratic society and its citizens from external censorship. The intended outcome of these revolutions was to ensure the citizen’s right “to freely speak one's mind, represent one's viewpoint, defend one's opinions, communicate one's ideas… without fear for life, liberty, or possessions, but with peace of mind and a firm certainty of freedom from government harassment…” (Zoller 2009, 803). There are five notable historical movements and events that helped contribute to the widespread belief of freedom of expression as a fundamental right: the Enlightenment, The American and French Revolutions, the United Nations’ Universal Declaration of Human Rights, the fall of the Berlin Wall, and the Arab Spring.
THE ENLIGHTENMENT
The promotion of freedom of expression as a universal right was first established by the philosophes of the Enlightenment in the 17th and 18th centuries. Frederick of Prussia, Immanuel Kant, and Johann Gottlieb Fichte all wrote on the idea of freedom of expression, especially in how it relates to free thought and opinion. James Schmidt quoted Immanuel Kant in support of the claim that freedom of thought, however praiseworthy in its own right, is much more valuable when informed by the thoughts of others: “‘… but how much and how accurately would we think if we did not think, so to speak, in community with others to whom we communicate our thoughts and who communicate their thoughts to us!’” (Schmidt [quoting Kant] 1996, 30). Agreeing with this sentiment, Frederick of Prussia also expressed his wish “to rule over a noble, brave, freethinking people, a people that has the power and liberty to think and to act, to write and to speak, to win or to die” (Schmidt [quoting Frederick of Prussia] 1996, 89). At this point in history, freedom of expression, especially in a monarchical context, became a key component of Enlightenment thought, as it was determined that the right to possess and share one’s opinions was the mark of a civilized society.
THE AMERICAN AND FRENCH REVOLUTIONS
Building upon Enlightenment philosophies, freedom of expression (or the lack thereof) played central roles in the American and French Revolutions of the late 18th centuries. However, how freedom of expression was expressed in each case manifested very differently.
In America, "as taxes were imposed without their consent, colonists believed their freedom of expression and representation was violated. Protests, petitions, and gatherings were quickly put down by government officials. Freedom of expression, speech, and the press were punishable and denied to many" (Charkins et. Al 2019, 35). The repression of what the colonists believed to be a fundamental right only exacerbated the situation and eventually led them to demand “the formation of a government that would promise protection of those inherent liberties" via the American Revolution (Pomerance 2016, 112). After the war, this eventually prompted the ratification of the First Amendment to the Constitution that confirmed that “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” (U.S. Constitution, 1791).
Conversely, while American efforts came from an institutionalized lack of freedom, the French struggle came from a surprising decision from King Louis XVI. In 1789, when he called a meeting of the Estates General, he began by “suspending censorship of publications, even allowing writings that criticized the monarchy…" (Pomerance 2016, 114). This afforded French people freedom of expression to a degree they had never seen before, and soon newspapers and pamphlets across France were calling for a democratic overhaul of the whole country. This top-down decision from the King paved a slightly untraditional path to revolution, especially in contrast to the Americans who were denied freedom of expression from their government. Louis had opened the floodgates, and just months after the first meeting, “there was little doubt that free speech and expression were high on the list of demands from the Frenchmen calling for change” (Pomerance 2016, 117). These sentiments were eventually listed in the Declaration of the Rights of Man and of the Citizen, in Articles 10 and 11 which state that “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order,” and “the free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law" (“Declaration of the Rights of Man”).
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
International protections of fundamental rights did not emerge until the late 20th century in response to the “barbarous acts” of World War II (Amnesty International). And in response to these acts, it became a goal of the newly founded United Nations to set a global standard for freedom and justice for everyone, regardless of nationality or citizenship. The Universal Declaration of Human Rights (UDHR) was adopted in 1948 and establishes a comprehensive list of rights and liberties that everyone is entitled to. Freedom of expression is guaranteed by Article 19 which states that “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” (United Nations 1948). While the UDHR is not a legally binding document, it was the first international agreement focused on the protection of basic human rights and freedoms.
THE FALL OF THE BERLIN WALL
The fall of the Berlin Wall was a major turning point in the history of freedom of expression and its applications. During the Cold War, Europe was split between a democratic West and a communist East, with a physical manifestation of this divide erected in Berlin by the German Democratic Republic (East Germany). Many basic freedoms and liberties were suppressed in the Eastern Bloc, and “human rights violations in East Germany centered mainly on freedom of movement, expression and association” (Human Rights Watch 1989). Before the fall, “the potential to express dissidence… [marked] the border between East and West," but after, East Berliners used their restored freedoms to express their opinions without fear of retribution (Zoller 2009, 806). The fall of the Berlin Wall was a major win for universal human rights, and it marked the beginning of the end of the Cold War that inspired similar democratic movements across the Eastern Bloc that eventually led to the collapse of the Soviet Union.
THE ARAB SPRING
Applications of human rights and freedoms will have to continue to adapt to societal changes. As recently seen with the Arab Spring uprisings, widespread access to the internet and social media channels that now allow near total freedom of expression on a global scale has reshaped how one can utilize this freedom for the promotion of democracy, but it has also raised questions as to how parameters of this right should be drawn in instances of dangerous or harmful views. Before the rise of the internet, “discussions focused on the idea of what a man was allowed to utter or write when he found himself to be at odds with an established orthodoxy…", but now, it is imperative that “national legislations should envisage legal instruments to carefully limit its application (when abusive), in those situations in which free speech becomes an obstacle for the free exercise of other fundamental rights” as free speech and expression can be shared on an international level (Racolța 2019, 8, 15). Although freedom of expression is now an expected right of democratic societies, it remains at the forefront of international discussions to determine how to both ensure the right itself for people deprived of it and to also protect people from abuses of free expression.
References:
Charkins, Jim, Michelle Herczog, and Thomas Herman. “Breaking Down the Silos: The American Revolution--A Story Well Told.” Social Studies Review 58 (January 2019): 25–42. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=eft&AN=154271093&site=ehost-live&scope=site.
“Declaration of the Rights of Man.” Avalon Project. Accessed June 16, 2023. https://avalon.law.yale.edu/18th_century/rightsof.asp.
“EAST GERMANY.” Human Rights Watch World Report, 1989. https://www.hrw.org/reports/1989/WR89/Eastgerm.htm.
Pomerance, Benjamin. “First In, First Out: Promises and Problems of Free Expression in Revolutionary and Post-Revolutionary Governments.” Maryland Journal of International Law 31, no. 1 (January 2016): 107–79. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=122460887&site=ehost-live&scope=site.
Racolța, Remus, and Andreea Verteș-Olteanu. 2019. “Freedom of Expression. Some Considerations for the Digital Age.” Jus et Civitas VI (LXX) (1): 7–16. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=139539130&site=ehost-live&scope=site.
Schmidt, James. What Is Enlightenment?: Eighteenth-Century Answers and Twentieth-Century Questions. Philosophical Traditions. Berkeley: University of California Press, 1996. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=nlebk&AN=4657&site=ehost-live&scope=site.
“Universal Declaration of Human Rights.” Amnesty International, April 11, 2023. https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/#:~:text=The%20UDHR%20was%20adopted%20by,for%20freedom%2C%20justice%20and%20peace.
United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations General Assembly, 1948.
Zoller, Elisabeth. "Foreword: Freedom of Expression: Precious Right in Europe, Sacred Right in the United States," Indiana Law Journal 84, no. 3 (Summer 2009): 803-808
The Universal Declaration of Human Rights, a document adopted by the United Nations General Assembly in December of 1948, recognized freedom of expression as a universal human right, inherent and applicable to all individuals. A milestone declaration, it has subsequently influenced countless state constitutions, treaties, and legal codes, defining the right as including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UN General Assembly 1948, 5). Though a majority of nations grant freedom of expression to their constituents in a formal capacity, there are often discrepancies in the way they are practiced and protected, as well as interpreted, in part because of a country’s history, political philosophy, and social factors. Some states are more restrictive of expression, prohibiting or discouraging acts and speech that reflect negatively on the nation’s religion, regime, or culture, while others safeguard this form of expression. Nearly all have censorship laws in place that touch upon defamation and libel, hate speech, and obscenities, though with varying degrees of consequences and protection.
Nations with strong secular traditions, such as France, allow for criticisms and negative portrayals of religion under the right to freedom of expression, while theocratic states, like Iran and Pakistan, completely restrict it under threat of punishment. Freedom of expression has been a fundamental right for French citizens since the proclamation of the Declaration of the Rights of Man and of the Citizen in 1789, which provided a “limited freedom of expression whose scope is defined by law,” leaving it up to legislators to establish those limits (Guedj 2021, 1). The right was redefined by the Law on the Freedom of the Press of 1881, which reemphasized the public’s ability to express itself while forbidding libel, defamation, offence to public decency and provocations to crimes, among others, and then again with the Pleven Act of 1972 and the Gayssot Act, which prohibited incitement to racial/religious hatred and Holocaust denial respectively (Colosimo 2018, 2). Those who violate these laws can be subject to fines or imprisonment. However, under France’s legislature, it is “possible to insult a religion, its figures and symbols,” as long as it does not incite violence or “insult members of a religion” for belonging to that faith (Colosimo 2018, 2). Though the lines between the two can be blurry, the right to freedom of expression in France is quite liberal when it comes to discussion around religion and allows for acts of expression that go against theological doctrine and criticize it.
There are several theocratic states that have provisions within their legal framework that also guarantee freedom of expression, though they heavily restrict it through strict anti-blasphemy laws that prohibit any act or speech that can be perceived as negative by governmental authorities and carry punishments. Article 24 of Iran’s constitution states, “Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law” (“Islamic Republic of Iran” 2023, 14). Pakistan has a similar provision in its constitution with Article 19: "Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, committing, or inciting an offence" (Pakistan Constitution, ch. 1, art. 19). While Iran and Pakistan do have a legal freedom of expression, they restrict it, with the international non-profit organization Reporters Without Borders (RWB) citing various cases in which they censored and filtered what is put online and “punished citizens for statements that were considered blasphemous” (“2023 World Press Freedom Index” 2023, 5). Restrictions of expressions on religion are not only enforced in theocratic countries, however, as Finland forbids breaching the sanctity of religion “which includes ‘blaspheming against God,’ publicly defaming or desecrating to offend something a religious community holds sacred, and disturbing worship or funeral ceremonies” with violators being subject to “fines or imprisonment of up to six months” (“Finland 2021 Report” 2021, 3).
Thailand, a constitutional monarchy, guaranteed freedom of expression to its citizens since the 1997 Constitution of Thailand and continues to guarantee it with the various different constitutions that have followed since, though it has a distinct interpretation of the right when it comes to the royal family. Thailand’s government is very restrictive of the way citizens can partake in this right, particularly with its strict lèse-majesté laws, seen as one of the harshest in the world. Lèse-majesté is an offence against the dignity of a ruling head of state, an act that is prohibited under Thailand’s legal code which states, “Whoever defames, insults, or threatens the King, the Queen, the Heir to the Throne, or the Regent, will be punished with a jail sentence between three and fifteen years.” (Mérieau 2021, 77). The state’s right to freedom of expression does not cover speech or acts that are deemed negative towards the monarchy, with the law being considered ambiguous and open to the interpretation of authorities. This distinct interpretation of freedom of expression derives from the influence of Hindu-Buddhist culture in Thailand where kings were seen as divine figures to be respected, giving them a form of sanctity that left a lasting impact on the country’s political system (Mérieau 2021, 78). Other states that interpret freedom of expression in a similar way include Turkey, where it is illegal under Article 301 of the country’s penal code to insult the Turkish nation, its government, and its national heroes under threat of imprisonment (“Turkey: Article 301” 2006, 1).
Saudi Arabia, holds freedom of expression to a different status than the previously mentioned states, failing to articulate it in its law but still penalizing acts of expression that are deemed blasphemous or portray the regime in a negative light, with punishments ranging from hefty fines to death sentences. Saudi Arabia’s Basic Law of Governance, the country’s constitution-like charter, does not provide for freedom of expression or the press, simply stating, "Mass media and all other vehicles of expression shall employ civil and polite language, contribute towards the education of the nation, and strengthen unity. The media are prohibited from committing acts that lead to disorder and division, affect the security of the state or its public relations, or undermine human dignity and rights” (U.S. Department of State 2018, 23). This gives authorities ample power to determine what expression violates the law, placing heavy emphasis on the safeguarding of religious values and morals. A distinct feature of freedom of expression in the United States that differentiates it from many other nations is that certain hate speech is protected under the First Amendment. In the United States, “hate speech is given wide constitutional protection while under international human rights covenants and in other Western democracies, such as Canada, Germany, and the United Kingdom, it is largely prohibited and subjected to criminal sanctions” (Rosenfeld 2002, 1523). This was reaffirmed in the 2017 U.S. Supreme Court Case Matal v. Tam, in which the justices determined that hate speech falls under the protection of free speech: “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” (2). The expression may be subject to punishment if it seeks to incite an imminent violent or lawless action This is quite a different interpretation than many other democratic nations, where expressions that are considered hate speech can be punishable by law. In Germany, for example, acts of expression that are racist, antisemitic, advocating for Nazism, denying the Holocaust, or glorifying the ideology of Hitler are illegal (“Germany: Freedom in the World” 2023, 9).
The right to freedom of expression is recognized as a fundamental human right that applies to all individuals by the United Nations, being adopted and incorporated into the legal code or constitutions of a majority of states around the world. The right differs, however, in its interpretation and practice within each individual country, as well as the extent to which it is protected. Some states interpret freedom of expression through a more restrictive lens, prohibiting negative acts of expression that touch upon religion, government, or culture, while others allow it with more lenient limitations. A state’s interpretation of freedom of expression can be influenced by its unique history, its political climate, as well as social and religious factors, resulting in different interpretations and practices of freedom of expression around the world.
References:
“2023 World Press Freedom Index – Journalism Threatened by Fake Content Industry.”
2023. RSF. Accessed June 14. https://rsf.org/en/2023-world-press-freedom-index-
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Colosimo, Anastasia. 2018. “Blasphemy in France and in Europe: A Right or an Offense?”
Institut Montaigne. November 16. https://www.institutmontaigne.org/en/expressions
“Finland 2021 International Religious Freedom Report.” 2023. U.S. Department of State.
https://www.state.gov/wp-content/uploads/2022/04/FINLAND-2021
“Germany: Freedom in the World 2022 Country Report.” 2023. Freedom House. Accessed June
9. https://freedomhouse.org/country/germany/freedom-world/2022.
Guedj, Nikita. 2021. “The Law on the Freedom of the Press of 29 July 1881: A Text That Both
Guarantees and Restricts Freedom of Expression.” Fondation Descartes. July 16.
https://www.fondationdescartes.org/en/2021/07/the-law-on-the-freedom-of-the-press-of-
29-july-1881-a-text-that-both-guarantees-and-restricts-freedom-of-expression/.
“Islamic Republic of Iran 1979 (Rev. 1989) Constitution.” 1989. Constitute.
https://www.constituteproject.org/constitution/Iran_1989?lang=en.
Matal, Interim Director, United States Patent and Trademark Office v. Tam. 582 U.S. (2027)
Mérieau, E. 2021. “A History of the Thai lèse-majesté Law”. Thai Legal History: From
Traditional to Modern Law, 60-70.
Rosenfeld, Michel. 2002. “Hate speech in constitutional jurisprudence: a comparative analysis.”
Cardozo L. Rev., 24, 1523.
“Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ Is an Insult to Free
Expression.” 2006. Amnesty International. March 1.
https://www.amnesty.org/en/documents/eur44/003/2006/en/.
UN General Assembly. 1948. Universal Declaration of Human Rights, , 217 A (III),
https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
U.S Department of State. 2018. Country Reports on Human Rights Practices for 2017: Saudi
Arabia.
The right to freedom of expression is not necessarily qualified as a protected human right in each country or sovereign government. Rather, it is a global human right, as stated in Act 19 of the Universal Declaration of Human Rights; “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas through any media and regardless of frontiers.” (Civic, 1997, pg. 129). Within this declaration, a few key factors are revealed that are related to how the freedom of expression is exercised as a legally recognized right. First, expression is acknowledged as being equal to opinions; they are both very imperative when it comes to human rights and the exercise of freedom of expression. Without the acknowledgment of the inherent significance of freedom of expression in a group context or collective capacity, such as protections under the Constitution, the full exercise of the right will not be achieved without an elevated form of protection placed on it. “Therefore, naked freedom of expression, without some common sense or good community sense infused into it, ultimately will fail to protect the individual as a member of the community, by its total disregard for the needs of the society… Thus, while freedom of expression is essential to human dignity, additionally, for the ultimate good of the individual as a member of society, such freedom must be exercised responsibly and with a recognition of the integral relationship the autonomous self has with the greater society.” (Civic, 1997, pg.143). Although many different governments and nations recognize the significance of freedom of expression, they may not agree with the outcome of fully exercising this right for all citizens. Along those lines, when protections for freedom of expression are not present within a country or society, the full capacity for citizens to freely express their ideas and thoughts in an individual or community context will subsequently be stifled. The difference between protections of ‘freedom of expression’ and ‘freedom of speech’ is determined by the way that somebody voices or expresses an idea or opinion. Protections under the freedom of speech may be determined by the words themselves that are used, but the expression is conveyed through action, and moreover what a person is trying to show with that action. “The terms ‘expression’ and ‘action’ are functional ones, rooted in the fundamental character of a system of free expression and in the factors necessary to maintain its effective operation. Hence it is clear that the term ‘expression’ must include more than the mere utterance of words or other forms of communication. It must embrace a surrounding area of conduct closely related to the making of the utterance or necessary to make it effective.” (Emerson, 1964, pg. 24-25). Thomas Scanlon analyzed the theoretical significance of how freedom of expression is positioned between protected acts and the consequences of exercising this right. “The most common defense of the doctrine of freedom of expression is a consequential one. This may take the form of arguing with respect to a certain class of acts, e.g., acts of speech, that the good consequences of allowing such acts to go unrestricted outweigh the bad. Alternatively, the boundaries of the class of protected acts may themselves be defined by balancing good consequences against bad, the question of whether a certain species of acts belong to the private genus being decided in many is not all cases just by asking whether its inclusion would, on the whole, lead to more good consequences than bad.” (Scanlon, 1972, pg. 204-5). Within this analysis, the reflection of the significance of intention comes to light, where there is negative or malicious intent, protections remain absent under freedom of expression. One cannot use freedom of expression to instill violence, or suppression, but rather as a way to exude an opinion or idea that does not push these limitations under legal precedent. “However, since acts of expression can be both violent and arbitrarily destructive, it seems unlikely that anyone would maintain that as a class they were immune from legal restrictions. Thus the class of protected acts must be some proper subset of this class. It is sometimes held that the relevant subclass consists of those acts of expression which are instances of ‘speech’ as ‘opposed to action’.” (Scanlon, 1972, pg. 207). Freedom of speech differs inherently from the freedom of expression based on an action directive, a person can say something that goes against the government’s prerogative and not face legal consequences, but upon acting to overthrow or dismantle that government, the protection of expression does not extend to ‘fighting’ actions or malicious acts. This theorizing under the freedom of expression justly points out the differences between American protections of expression under democracy, versus a more autocratic regime that aligns itself with dictatorships or communist ideologies. For example, in the People’s Republic of China, a socialist democracy under the legal definition, the government chooses to remain neutral upon expression protections unless they conflict with the individualistic ideology of communal support. “The Communist perspective on free speech, by contrast, assigns absolute priority to the well-being of the community, and in so doing, sacrifices individual freedom of expression.” (Civic, 1997, pg. 127). Under the People’s Republic of China’s legal provisions, freedom of expression is intertwined with freedom of speech. “Speech and other forms of expression must be internally, as well as externally, restrained to serve all of the people [under the ideology of Communism]…Thus, the Chinese perception of free speech in particular, and human rights in general, is propelled by Communist ideology which emphasizes the interests of the community at the expense of individual interests. Finally, the ‘rights’ of the individual are defined relative to his duties to the community, and are subjected to qualification, restriction, and repression for community interests, as defined by the Communist Party elite.” (Civic, 1997, pg. 128). The gray area that is ‘freedom of expression’ within the ideology of Communism conflicts with the obvious reality of actually having protections of freedom of expression. Where there is no protection, there is a lack of freedom to act upon an idea or opinion. Although the freedom of expression is distinguishable from the freedom of speech, they are communally intertwined under the Communist ideology. Freedom of expression must serve to fit the relative overall needs of the community in the PRC through their freedom of speech, otherwise, it does not qualify legally as protection of freedom of expression.
References:
Civic, Melanne Andromecca. "Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection within All Nations and across All Borders." In Hybrid, vol. 4, p. 117. 1997
Emerson, Thomas I. "Freedom of Association and Freedom of Expression." The Yale Law Journal 74, no. 1 (1964): 1-35.
Scanlon, Thomas. "A theory of freedom of expression." Philosophy & Public Affairs (1972): 204-226
([[Probable year:: 1972]]) : 204-226
According to Pew Research, majorities in Australia, Turkey, the Philippines, Ukraine, South Africa and Nigeria report that it is important to have free press, an essential element of freedom of expression. Freedom of the press is considered very important by less than half of adults in South Korea, Japan, Israel, Indonesia, Russia, India, Tunisia and Lebanon, revealing these societies possibly place less of an emphasis on freedom of expression. Furthermore, Pew notes that despite the fact that freedom of the press has declined since [[Probable year:: 2015]], support for freedom of the press has increased overall. This demonstrates that individuals value freedom of expression greater when it becomes limited. Additionally, according to Pew people with less education and people with populist views are less likely to assert freedom of the press to be important.
Focusing on the United States, a Cato Institute study showed 58% of Americans felt that the current political climate keeps them from expressing themselves. Within this statistic, 53% of Democrats say they do not need to censor themselves in comparison to 27% of Republicans and 42% of Independents. This demonstrates that among Americans, Republicans particularly feel their right to free expression is limited by certain social and political norms, as they feel the need to restrict their speech. In regards to hate speech, despite the fact that 79% of Americans find it “morally unacceptable”, the Cato study reveals 59% of Americans believe it should be allowed in the public. Analyzing these numbers, the study claims, “the public appears to distinguish between allowing offensive speech and endorsing it.” Additionally, the study asserts that 66% of Americans believe colleges need to do more to teach Americans about the value of free speech, emphasizing that Americans highly value freedom of expression.
Looking to college campuses, a [[Probable year:: 2017]] Gallup poll found that 61% of college students strongly agreed that their campus climate prevents people from saying the things they believe. This was up seven percentage points from [[Probable year:: 2016]], when Gallup previously surveyed students. A reversal from [[Probable year:: 2016]], Democrats and Independents were more likely than Republican students to believe their college environment limited their ability to speak freely. Lastly, the study found that a smaller majority of students polled preferred a campus where all speech was allowed, demonstrating that students' value of free speech on campus has declined.
An additional Pew study found that globally, a median of 62% of individuals say their country protects individual freedom of expression. Furthermore, the study found that individuals in countries with advanced economies were more likely to report that their country supported freedom of expression than individuals in countries with emerging economies. In Brazil, Spain, Argentina, Italy and Mexico, more than 50% of surveyed individuals stated they did not agree with the statement that their country supports freedom of expression. Specifically, Brazil reported very low numbers for freedom of expression, 39% saying their country does not support free expression at all. Within Europe, individuals in countries with favorable populist parties, such as Sweden, were additionally less likely to report that freedom of expression was protected by their government.
References:
Emily Ekins, The Cato Institute, "The State of Free Speech and Tolerance in America," October 31, 2017: https://www.cato.org/survey-reports/state-free-speech-tolerance-america
Aidan Connaughton, Pew Research Center, "5 charts on views of press freedom around the world", May 1 2020: https://www.pewresearch.org/short-reads/2020/05/01/5-charts-on-views-of-press-freedom-around-the-world/
Jeffrey M. Jones, Gallup,"More U.S. College Students Say Campus Climate Deters Speech," March 12, 2018, https://news.gallup.com/poll/229085/college-students-say-campus-climate-deters-speech.aspx
Richard Wike, Laura Silver, and Alexandra Castillo, Pew Research Center, "Publics satisfied with free speech, ability to improve living standards; many are critical of institutions, politicians," April 29, 2019, https://www.pewresearch.org/global/2019/04/29/publics-satisfied-with-free-speech-ability-to-improve-living-standards-many-are-critical-of-institutions-politicians/
Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion.
Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “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” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10).
Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302).
Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights.
Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right.
The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression.
In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927).
The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395).
Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413).
Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporated this right to the states for the first time). In its ruling, the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299).
The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993).
In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12).
While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist.
References:
Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023)
Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023)
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023)
Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023)
De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023)
International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf
Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023)
Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf
Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023)
Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf
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Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023)
Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023)
Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023)
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Freedom of expression is a relatively new term, however, not a new concept. For much of its history, the individual freedoms covered under freedom of expression were established in isolated contexts throughout time and eventually translated into this overarching concept of freedom of expression. The identification of this freedom is a product of many contributions over several centuries, resulting in associations to multiple eras and contributors: yet remaining limited to being a fundamental element of democratic regimes. The composition of freedom of expression possesses two elements associated with the present-day interpretation. The first element is the origins of the foundational freedoms covered under the overall “Freedom of expression.” The second element is the transition from individual freedoms to the broader notion of expression.
Today, it is universally understood that freedom of expression includes freedom of speech and freedom of the press. While freedom of speech has origins in ancient Greece through the concept of Parrhêsia, (Konstan, 2012, 1), freedom of the press and expression have a significant concrete appearance through the works of John Milton in Areopagitica(1644). In the book Free Speech and Democracy in Ancient Athens, Arlene Saxonhouse discusses how Milton “Protests the licensing of books and the governmental restraints thereby placed on free expression in published works… Milton argues in a series of allusions to the world of ancient Athens, tying Milton to the values expressed by the ancient Athenian, connecting freedom of speech to human virtue and political freedom’’ (Saxonhouse 2005, 20).
The next significant development to freedom of expression was the ratification of the Bill of Rights into the U.S. Constitution; a document that drew inspiration from the English Magna Carta (1215). Although the Magna Carta did not explicitly mention free speech, it did guarantee certain liberties that would be conceptualized into modern democracy and go on to inspire the Bill of Rights, i.e The First Amendment (WEX Definitions Team, 2020). Thus, The First Amendment became an important development in what would come to be called freedom of expression. However, it wouldn't be until 1948 that “freedom of expression” was officially coined and universally recognized. Following World War II, freedom of information was declared a fundamental human right but the language of “freedom of expression” was not agreed upon until it was drafted and entered into the Universal Declaration of Human Rights in 1948 by an American committee (Kleinwächter, 2022). Between The First Amendment and Universal Declaration of Human Rights, innovations such as the telegraph and radio broadcasting proposed new obstacles to information sharing beyond borders. This led to multiple treaties and conventions discussing the censoring of content shared internationally, thus challenging freedom of speech and press, however, no explicit mention of freedom of expression was mentioned in these international treaties(Kleinwächter, 2022). Article 19 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of opinion and expression; this includes the right to hold opinions without interference and to seek, receive, and impart information through any media regardless of frontiers.” It was here that the individual freedoms within the First Amendment translated into the united concept of “freedom of expression” and then became internationally recognized into law through the International Covenant on Civil and Political Rights in 1966 with the same language used in Article 19 (Kleinwächter, 2022). With a long evolution and multiple developments contributing to the concept today, the identification of this freedom is not limited to a single era, but rather significant to several. ..
The associations of these eras parallel the significance of the identification of this freedom in relation to a specific type of regime. These dates, as well as the overall notion of this freedom, are important to the development and expansion of democracy and democratic institutions. This element of democracy facilitates open debate, proper consideration of different perspectives, and the negotiation and compromise necessary for consensual policy decisions (Freedom House, 2023). Without this freedom, true democracy would not exist as “the suppression of ideas is inconsistent with the concept that a democratic society bases its decisions on full and open discussion of all points of view (Bogen, 1983, 464).” Expressing content or discontent for a government, policy, or principle, as well as proposing solutions or critiques, amongst expressions of other topics, allows for the democratic process to function for its intended purpose and is profoundly within the right of an individual to do so as a protected human right.
Unlike the association to a single regime type, this freedom is not limited to a single political leader. Instead, multiple figures, often not in positions of leadership, opposed the censoring of opinions and ideas, and acted as the main contributors to the expansion of freedom of expression. Those who drafted the Magna Carta opposed the monarchy of King John; Milton opposed government censorship, and the Framers of the Constitution opposed absolute power by a single ruler. All of these developments over time resulted in the association to several contributors who led us to the contemporary understanding of this freedom. This long evolutionary process with collaborative efforts from key points and figures throughout history has resulted in the identification of this right being tied to multiple eras and figures, yet to only one regime type.
References:
Konstan, David. 2012. “The Two Faces of Parrhêsia: Free Speech and Self-Expression in Ancient Greece.” Antichthon 46. Cambridge University Press: 1–13. doi:10.1017/S0066477400000125.
Saxonhouse, Arlene W. 2005. Free Speech and Democracy in Ancient Athens. Cambridge University Press. 11-37
WEX Definitions Team. 2020 “Magna Carta.” LII / Legal Information Institute. https://www.law.cornell.edu/wex/magna_carta#:~:text=The%20writers%20of%20the%20Bill.
Bogen, David S. 1983. “The Origins of Freedom of Speech and Press” 42. Maryland Law Review. 429-465.
https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2503&context=mlr
Freedom House. “Freedom of Expression.” 2023. https://freedomhouse.org/issues/freedom-expression
Kleinwächter, Wolfgang. 2022. “A History of the Right to Freedom of Expression.” Observer Research Foundation. https://www.orfonline.org/expert-speak/a-history-of-the-right-to-freedom-of-expression/
Even though freedom of expression is not written into the US Constitution, as are many fundamental rights in the USA, most people would agree that this right is fundamental and should generally be protected, however the level to which it should be protected may differ from person to person.
Most people would think that freedom of expression is fundamental because it allows for conversations in two different areas of life: legal discourse and everyday life. Most Americans believe that freedom of expression is a fundamental right that should be protected. People should be allowed to express their opinions without fear of being “cancelled” or that they will be harmed for voicing their opinion. The Knight Foundation produced a survey on Americans’ views on free speech and found that 91% of them think that protecting it is crucial to protecting American Democracy (Knight Foundation, 2022). This necessity for freedom of speech becomes especially true when two people have an opposing viewpoint on something because they should be able to disagree freely, without fear of punishment. However, in a New York Times Article, most Americans have begun to bite their tongue because they’re afraid of “cancel culture,” a phenomenon that occurs when a politician, celebrity, or another influential person speaks in a certain way that causes a withdrawal of support. Some people may feel like others don’t need to express everything they’re thinking. In this article, “America has a Free Speech Problem,” the authors say that a poll created by Times Opinion and Siena College found that “84 percent of adults said it is a ‘very serious’ or ‘somewhat serious’ problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism” (America Has a Free Speech Problem, 2022).
In an interview between Sean Illing and Brian Leiter for Vox, Leiter explains that “we have massive amounts of worthless, dangerous speech in the public sphere right now” (Illing, 2019). It seems as if Leiter isn’t saying that freedom of speech is a “bad” thing, so much as that some people may be abusing this freedom. If speech were more regulated, and people weren’t allowed to post whatever they wanted without being fact-checked, then the speech could be less damaging—there could be less fake news, for instance. Limitations on freedom of expression could under such circumstances prevent unnecessary harm. Justice Murphy, in Chaplinsky v New Hampshire, argued that there are “certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and ‘fighting words’ (Chaplinsky v New Hampshire). This case is still upheld today, so anyone engages in such speech may be punished by the law.
While freedom of expression protects most people’s actions, it does not allow people to express themselves however they want. Some exceptions have been asserted over the years in American law. In Bethel School District No. 403 v. Fraser, a student was reprimanded by school officials for making a “lewd and vulgar speech” at an assembly. This is similar to Schenck v. United States, which ruled that yelling “fire” in a crowded theatre is not protected by the first amendment. So, the constitution has allowed for “freedom of speech,” there are exceptions when it seems it’s not appropriate for the setting. In this article, she mentions that “people can’t go around saying what they think all the time when that speech infringes on other’s rights. There needs to be a limit for what people do say, where people say it, when people say it” (Hanna, 2022). While they may not be rare, exceptions to the protection of freedom of expression should be made when our words negatively impact someone else.
It seems as if freedom of expression in the United States is less censored than in other parts of the world. In nations such as North Korea, Turkmenistan, Libya, Syria, and Belarus “the media is either state-controlled or silenced, the internet is filtered, and highly censored and restrictive laws are used—often in tandem with fear and intimidation—to prevent the spread of ideas and information” (Countries with Freedom of Speech 2024). While freedom of expression seems to be a priority in the United States, other countries do not protect people’s rights to express themselves freely.
Freedom of expression is protected when it does not cause unnecessary harm or potentially put someone at risk. And on the off chance that it does negatively affect someone, or causes them harm, then there should be exceptions to their ability to freely express themselves.
References:
Knight Foundation. 2022. “Free Speech for All? Poll Reveals Americans’ Views on Free Expression Post-2020.” Knight Foundation. January 6, 2022. https://knightfoundation.org/press/releases/free-speech-for-all-poll-reveals-americans-views-on-free-expression-post-2020/.
The Editorial Board. 2022. “America Has a Free Speech Problem.” New York Times, March 18, 2022. https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html.
Illing, Sean. 2019. “Free Speech: Is It Actually a Good Thing?” Vox. Vox. March 4, 2019. https://www.vox.com/2019/3/4/18197209/free-speech-philosophy-politics-brian-leiter.
“Chaplinsky v. New Hampshire.” 2019. Oyez. 2019. https://www.oyez.org/cases/1940-1955/315us568.
Hanna, Verina. 2022. “Limitations Are Necessary for Freedom of Speech.” THE ALGONQUIN HARBINGER. March 17, 2022. https://arhsharbinger.com/29742/opinion/limitations-are-necessary-for-the-freedom-of-speech/#:~:text=The%20limitations%20of%20the%20freedom.
World Population Review. 2022. “Countries with Freedom of Speech 2020.” Worldpopulationreview.com. 2022. https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech.
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In some cases, governments have curtailed freedom of expression for reasons that are not generally seen as permissible by the standards of the United States.
As noted by Professor Jérôme Viala-Gaudefroy, not all types of expression are protected under US law. Those involving “obscenity, fraud, child pornography, harassment, incitement of illegal conduct and imminent lawless action, true threats, and commercial speech such as advertising, copyright or patent rights” (Viala-Gaudefroy 2021) can be restricted, among others. That said, there have been instances within the US where the right was curtailed for a reason not listed above. These justifications, therefore, would be viewed as non-permissible restrictions on freedom of expression.
The Minnesota state legislature passed a statute that barred voters and other individuals from wearing political apparel and accessories inside a polling place on election day, which included a “political badge, political button, or other political insignia” (Minnesota Voters Alliance v. Mansky 2018, 1). The legislation was meant to create “an island of calm in which voters [could] peacefully contemplate their choices” (Minnesota Voters Alliance v. Mansky 2018, 11), essentially eliminating disruptions at the polling place. However, the ban was challenged by the Minnesota Voters Alliance (MVA) and other individual plaintiffs, who argued that it violated their first amendment rights “both on its face and as applied to their particular items of apparel” (Minnesota Voters Alliance v. Mansky 2018, 1). The Supreme Court agreed with the general sentiments of the Minnesota law, stating that “casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction (Minnesota Voters Alliance v. Mansky 2018, 11). However, the body ruled in favor of the MVA, explaining that the legislation was too broad and muddled - “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out… the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test” (Minnesota Voters Alliance v. Mansky 2018, 12-13). The state’s ban on expression within polling places was thus not deemed permissible.
Similar to US law, the European Convention on Human Rights does not protect all types of expression. Article 10 of the document clearly states that the right can be restricted when “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Council of Europe 1950, 12). However, what a country believes is a necessary restriction on one of these grounds does not necessarily match up with the opinion of the European Court of Human Rights, which has the final say on what types of expression are permissible.
In 2005, journalist Eynulla Fatullayev, an Azerbaijani national, visited Nagorno-Karabakh, a region that has been the subject of a territorial dispute between Armenia and Azerbaijan and at the time was controlled by Armenian military forces. Fatullayev interviewed both locals and officials during his visit, as well as some Azerbaijani refugees who had fled the region, which he then published the following year. In his piece, Fatullayev claimed that during the Nagorno-Karabakh war in 1992, civilians “had been mutilated by [their] own” (Fatullayev v. Azerbaijan 2010, 4) Azerbaijani forces as they attempted to flee the region, among other statements. Upon reading the article, a group filed a criminal complaint against Fatullayev, asking that he “be convicted of defamation and of falsely accusing Azerbaijani soldiers of having committed an especially grave crime” (Fatullayev v. Azerbaijan 2010, 5). Fatullayev was later convicted of these crimes, as well as of terrorism or the threat of terrorism for another article he had published which appeared to address Iranian-Azerbaijani relations and threaten ethnic conflict. As a citizen of a country that signed the European Convention on Human Rights (hereby known as“the Convention”), Fatullayev was able to appeal his convictions to the European Court on Human Rights (“the Court”) on the grounds that his right to freedom of expression as defined by Article 10 of the Convention had been violated. The Court sided with the applicant, saying that he was presenting a set of opinions in a debate and did not seek to defame or act maliciously towards the victims and actors involved in the war, and thus was not abusing their rights. Additionally, the Azerbaijani government’s interference was not “necessary in a democratic society” or “a pressing social need” (Fatullayev v. Azerbaijan 2010, 22). Therefore, the body concluded “that the statements that gave rise to the applicant's conviction did not amount to any activity infringing the essence of the values underlying the Convention or calculated to destroy or restrict the rights and freedoms guaranteed by it…the applicant's freedom of expression cannot be removed from the protection of Article 10” (Fatullayev v. Azerbaijan 2010, 22). By the Court’s standards, then, Azerbaijan’s attempt to inhibit the applicant’s freedom of expression was unacceptable.
References:
Council of Europe. 1950. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. https://www.echr.coe.int/documents/convention_eng.pdf
Fatullayev v. Azerbaijan, Application no. 40984/07, ECtHR judgment of 4 October 2010.
https://hudoc.echr.coe.int/fre?i=001-216685
Minnesota Voters Alliance v. Mansky, 849 F. 3d 749 (2018). https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf
Viala-Gaudefroy, Jérôme. 2021. “The Idolization of Free Speech in the United States.” The Conversation, February 22, 2021. https://theconversation.com/the-idolization-of-free-speech-in-the-united-states-155778#:~:text=Free%20speech%20is%20not%20absolute,advertising%2C%20copyright%20or%20patent%20rights
Article 31 of the 1964 Afghanistan Constitution states that “every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution” (University of Nebraska, “Constitution of Afghanistan,” 1964) .
In Afghanistan's [[Probable year:: 2004]] constitution Article 34 explicitly protects the freedom of expression. With every Afghan having the right to “express through speech, writing, illustrations as well as other means in accordance with the provisions of the constitution.”
References:
1964 Afghanistan Constitution: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=afghanenglish
2004 Afghanistan Constitution: https://www.constituteproject.org/constitution/Afghanistan_2004?%20lang=en +
Article 197 of the 1928 Fundamental Statute of the Kingdom of Albania guaranteed freedom of speech in peacetime under ordinary circumstance, but left room for exceptions in wartime or under extraordinary conditions. Freedom of speech was also asserted in Article 53 of the 1976 Constitution. Article 22 of the 1998 Albanian constitution guarantees the freedom of expression.
References:
1928 Fundamental Statute of the Kingdom of Albania: https://www.hoelseth.com/royalty/albania/albconst19281201.html
Albania Constitution (1976): https://data.globalcit.eu/NationalDB/docs/ALB%20The%20Constitution%20of%20the%20Peoples%20Socialist%20Republic%20of%20Albania%201976.pdf
Albania Constitution (1998): “Albania 1998 (Rev. 2016) Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Albania_2016?lang=en. +
Article 19 of the 1963 Algerian Constitution states that “the Republic guarantees freedom of the press and of other means of information, freedom of association, freedom of speech and public intervention, and freedom of assembly”
Freedom of expression is currently guaranteed by the 52nd article of the 2020 Algeria constitution.
References:
“The Algerian Constitution.” The Middle East journal 17, no. 4 (1963): 446–450.
“Algeria 2020 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Algeria_2020?lang=en. +
The Andorran constitution ensures freedom of expression and the freedom to share information in the 12th article of their constitution. This right was codified in 1993 and includes a prohibition on public censorship.
“Andorra 1993 Constitution.” Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Andorra_1993?lang=en. +
Article 22 of the 1975 Angolan Constitution states: "Within the framework of the realization of the basic objectives of the People's Republic of Angola, the law will ensure freedom of expression, assembly, and association."
Freedom of expression is asserted in the 1992 Angola constitution, part II, article 32: "Freedom of expression, assembly, demonstration and all other forms of expression shall be guaranteed."
Under chapter two, article 31-32 of the 2010 Angolan Constitution, freedom of expression is guaranteed along with other civil rights and freedoms considered fundamental.
References:
1975 Angola Constitution: “The Constitution of the People’s Republic of Angola.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.journals/rsl2&i=197
1992 Angola Constitution: https://constitutionnet.org/sites/default/files/Angola%20Constitution.pdf
2010 Angola Constitution: Constitute. Accessed September 14, 2022. https://www.constituteproject.org/constitution/Angola_2010?lang=en. +
In Antigua and Barbuda the 1981 constitutions second chapter offers a broad variety of protections. They range from the freedom of expression to the protection from discrimination on the grounds of race.
References:
“Republic of Antigua and Barbuda / República Del Antigua y Barbuda Constitution of 1981 Constituciones De 1981.” Antigua and Barbuda: Constitution, 1981: https://pdba.georgetown.edu/Constitutions/Antigua/antigua-barbuda.html. +
In Argentina the 1853 constitution laid the groundwork for freedom of expression. "Freedom of speech, although not expressly granted by the Argentine Constitution as it is in the Constitution of the United States, is nevertheless impliedly recognized in Article 14, which guarantees freedom of the press and which provides that all inhabitants of the nation have the right to publish their ideas through the press without previous censorship; and in Article 33, which provides that the declarations, rights, and guarantees enumerated in the Constitution shall not be considered a denial of other rights and guarantees not enumerated but which arise from the principle of the sovereignty of the people and of the republican form of government." (Amadeo, 186-187)
References:
Amadeo, Santos P.. Argentine Constitutional Law: The Judicial Function in the Maintenance of the Federal System and the Preservation of Individual Rights. New York Chichester, West Sussex: Columbia University Press, 1943. https://doi-org.proxygw.wrlc.org/10.7312/amad90398 +
The 1990 Declaration of Independence of Armenia guaranteed freedom of speech. Article 24 of the 1995 Constitution of Armenia also guaranteed freedom of speech, using language that suggests modes of expression analogous to speech: "Everyone is entitled to assert his or her opinion. No one shall be forced to retract or change his or her opinion. Everyone is entitled to freedom of speech, including the freedom to seek, receive and disseminate information and ideas through any medium of information, regardless of state borders." This constitution was amended in 2005, and Article 27 of the version amended amended in 2005 specifies a guarantee of freedom of expression: "Everyone shall have the right to freely express his/her opinion. No one shall be forced to recede or change his/her opinion. Everyone shall have the right to freedom of expression including freedom to search for, receive and impart information and ideas by any means of information regardless of the state frontiers."
References:
Armenian Declaration of Independence: https://www.gov.am/en/independence/
"Constitution of the Republic of Armenia" (1995): http://www.parliament.am/legislation.php?sel=show&ID=2425&lang=eng
"Constitution of the Republic of Armenia (with the Amendments of 27 November 2005)": http://www.parliament.am/legislation.php?sel=show&ID=1&lang=eng +
According to the Australian Human Rights Commission: "The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." Furthermore, the Australian Human Rights Commission sees freedom of expression as extant in common law, and described a presumption in favor of preservation of such rights, absent explicit claims by Parliament to the contrary: "A well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. This includes freedom of expression."
References:
“Freedom of Information, Opinion and Expression.” The Australian Human Rights Commission. Accessed September 14, 2022. https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression. +
Article 13 of Austria’s 1867 “Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm” states that “Everyone has the right within the limits of the law freely to express his opinion by word of mouth and in writing, print, or pictorial representation. The Press may be neither subjected to censorship nor restricted by the licensing System. Administrative postal distribution vetoes do not apply to inland publication” (Basic Law of 21 December 1867) .
References:
1867 Basic Law: https://www.servat.unibe.ch/icl/au03000_.html +