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Article 5(1)(g) of Vanuatu’s constitution was the first legal document to recognize freedom of expression as a fundamental right of the country’s citizens. The body of laws was adopted in 1980, shortly after gaining independence from France.
“Laws of the Republic of Vanuatu.” Government of Vanuatu. Accessed June 27, 2023. https://www.gov.vu/images/legislation/constitution-en.pdf +
Article 181 of the Constitution of the Federal States of Venezuela, adopted in 1811, was the first document in the country’s history to mention freedom of expression through print. However, Article 4 of the country’s 1819 constitution was the first to guarantee the right to express using all mediums, except in cases where it interfered with “public tranquility, good customs, life, honor, esteem, and individual property.”
“Constitución Federal de 1811.” Biblioteca Virtual Miguel de Cervantes. Accessed June 27, 2023. https://www.cervantesvirtual.com/obra-visor/constitucion-federal-de-los-estados-de-venezuela-21-de-diciembre-1811/html/86de8dbc-4b14-4131-a616-9a65e65e856a_2.html
“Constitución - 1819.” Instituto Geográfico de Venezuela Simón Bolívar. Accessed June 27, 2023. https://web.archive.org/web/20171201034609/http://www.igvsb.gob.ve/marco_legal/upload/archivos/CONSTITUCION%201819.pdf +
In 1946, the Democratic Republic of Vietnam adopted a constitution which became the country’s first legal document to enshrine freedom of speech into law. Article 10(i) specifically protected this right for Vietnamese citizens.
“Vietnamese Constitution 1946.” Bloomsbury Professional. Accessed June 27, 2023. https://media.bloomsburyprofessional.com/rep/files/vietnam-constitution-1946x.pdf +
Article 26 of the Yemeni constitution guarantees freedom of thought and free expression of opinions. The document was adopted in 1991, when South Yemen and the Yemen Arab Republic united.
“Constitution of Yemen.” University of Minnesota Human Rights Library. Accessed June 27. http://hrlibrary.umn.edu/research/yemen-constitution.html +
Freedom of expression was first legally protected in Zambia under its 1964 constitution. Article 22 of the document defines and guarantees this right, while stating that limitations can be enforced based on public interests, protection of the rights of others, and more.
“The Constitution of Zambia.” Citizenship Rights Africa. Accessed June 27, 2023. http://citizenshiprightsafrica.org/wp-content/uploads/2020/06/Zambia-Constitution-1964.pdf +
Zimbabwe’s constitution of 1980 is the first document in the country’s history to protect freedom of expression. Section 20 goes into specific detail about this right, and codifies some exceptions related to public interests and protections.
“Zimbabwe Constitution 1980 up to 17th Amendment.” Zimbabwe Legal Resources Website. Accessed June 27, 2023.
https://www.law.co.zw/download/zimbabwe-constitution-1980-up-to-17th-amendment/ +
Noted philosophers have written commentaries on laws, freedoms, and political theory; these include John Stuart Mill's noteworthy work On Liberty.
Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.
References:
John Stuart Mill, On Liberty +
The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to "say what one pleased" a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2019, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker.
During meetings of the dêmos, a term used to describe the populace of Athens, the herald of the assembly would call “who wishes to speak?” (Wallace 2004). In this venue, the populace could voice their opinions and concerns to be heard by the assembly. Parrhesia extended beyond the dêmos; it was present in Athenian humor and was capitalized on by philosophers like Plato and Socrates (Wallace 2004). What the Athenians lacked was “a conception of precisely those inalienable rights which have been the foundation of the modern libertarian doctrine: freedom of speech, of religion and so on.” (Finley 1983). What this meant was that since there was no conception of these laws, such as a constitution, the Athenian government could censor certain persons or ideas as they saw fit. Parrhesia might not have been absolute, or last in Athens after the fall of democracy in Greece, but its memory was preserved by scholars and served as inspiration for future generations.
The origins of freedom of expression can be traced as far back as the 16th century. During this time, the Protestant Reformation occurred. Before the Reformation, the Church would put down any attempts at reform, typically in brutal fashion. “The birth of [freedom of expression] is credited to the Protestants – those who, as their name indicates, dared to protest and reclaimed the right to dissidence” (Zoller 2009). The Protestant Reformation showed that it was possible to gain freedom of expression and was one of the key sources of inspiration of the Enlightenment, which was one of the most important sources of inspiration for Americas founding fathers (Bristow 2010).
Shortly after the Declaration of Independence, the Virginia Colonial Legislature adopted The Declaration of Rights, which included freedom of the press (Lewis 2007). During the period between the Declaration of Independence and the adoption of the First Amendment, “nine of the original thirteen states had such provisions in their constitutions or other basic documents.” (Lewis 2007). When the Constitution was drafted in 1787, it was the creators and supporters of these state rights that insisted they be included in the federal Constitution. The First Amendment in the Bill of Rights establishes the specifics of the freedom to express, including freedom of speech, freedom of the press, the right to peacefully assemble, and the right to petition the government. At the same time, the French Revolution was in progress and the new National Assembly created the Declaration of the Rights of Man in 1789. Within this declaration, it states “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.” (Declaration of the Rights of Man 1789). Both France and the United States were establishing new governments in the wake of a revolution from a monarch. The censorship employed by these monarchs was one of the key reasons why both countries explicitly outlined the freedom to citizens to express themselves in their new constitutions.
To summarize, when was the oldest source that mentions freedom of expression? While it was not specifically mentioned, it can be seen in the 16th century during the Protestant Reformation. It was specifically mentioned and recognized in England’s 1689 Bill of Rights, but this did not extend to the citizens. Freedom of expression was not given explicitly to the citizens until France and the United States did so in 1789 with the Declaration of the Rights of Man, and the U.S. Constitution.
References:
“Avalon Project - Declaration of the Rights of Man - 1789.” Accessed June 6, 2024. https://avalon.law.yale.edu/18th_century/rightsof.asp
Becker, Sascha O., Steven Pfaff, and Jared Rubin. “Causes and Consequences of the Protestant Reformation.” Explorations in Economic History 62 (October 1, 2016): 1–25. https://doi.org/10.1016/j.eeh.2016.07.007
Bristow, William. “Enlightenment,” August 20, 2010. https://plato.stanford.edu/entries/enlightenment/?ref=artshelp.com
Burch, Kerry. “Parrhesia as a Principle of Democratic Pedagogy.” Philosophical Studies in Education 40 (2009): 71–82. https://eric.ed.gov/?id=EJ864311.
Finley, Moses I. Politics in the Ancient World. Cambridge University Press, 1983.
National Archives. “Bill of Rights (1791),” May 18, 2021.
https://www.archives.gov/milestone-documents/bill-of-rights
On Misconceptions Generated By Translating Parrhesia and Isegoria as “Freedom of Speech,” Chin-Yu Ginny Lu, 4, The University of Arizona, 2017 Tucson.
Two Concept of Freedom (Of Speech), Teressa M. Bejan, 97-99, Oxford University, 2019 Oxford.
Wallace, Robert W. “THE POWER TO SPEAK —AND NOT TO LISTEN— IN ANCIENT ATHENS.” In Free Speech in Classical Antiquity, 221–32. Brill, 2004. https://doi.org/10.1163/9789047405689_011
What is Freedom of Expression, Freedom Forum Institute Editors, Freedom Forum Institute, 2020 Washington D.C.
Zoller, E. “Foreword: Freedom of Expression: ‘Precious Right’ in Europe, ‘Sacred Right’ in the United States?” Indiana Law Journal, 2009. https://www.semanticscholar.org/paper/Foreword%3A-Freedom-of-Expression%3A-%22Precious-Right%22-Zoller/a06d65926e0118f6353c2d09b3638038d266ceed.
Multiple human rights regimes at both international and regional levels enshrine the universal freedom of expression in their frameworks, in accordance with the other fundamental values that these documents uphold. Although in international documents this freedom relates mostly to the unabridged ability of individuals to express their thoughts and opinions, it also protects media and press institutions that disseminate news and information throughout societies.
For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law.
In the context of international human rights regimes, freedom of expression is guaranteed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In both documents, freedom of expression is found under Article 19. In the UDHR, the right is listed as such: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (UN, 2014) Article 19 of the ICCPR is worded very similarly but includes greater specificity, as it explicitly lays out protected ways to consume and impart information, including “...orally, in writing or in print, in the form of art, or through any other media of [one’s] choice.” (OHCHR, 2014)
Regional human rights regimes also enshrine freedom of expression in a similar manner. The Organization of American States’ (OAS) Declaration of Principles on Freedom of Expression is composed of 13 articles that lay out protections of the freedom of expression and nuances of those protections in various contexts, including accessing information, censorship, communication freedoms, and privacy aspects. The American Declaration on the Rights and Duties of Man includes the freedom of expression in Article 4, with similar wording to Article 19 of the UDHR and the ICCPR. The African Charter on Human and Peoples’ Rights protects the right to “receive information,” and the right to “express and disseminate [one’s] opinions within the law.” (AU, 1986) This right is also established in the American Convention on Human Rights in Article 13 and is expanded by Article 14. Article 10 of the European Convention on Human Rights consists of two sections, the first echoing the wording of the UDHR and ICCPR, as well.
References:
American Declaration of the Rights and Duties of Man. Basic Documents - American
Declaration. (n.d.).
https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm.
European Convention on Human Rights. https://www.echr.coe.int/. (n.d.).
https://www.echr.coe.int/documents/convention_eng.pdf.
International Covenant on Civil and Political Rights. OHCHR. (n.d.).
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
PLC, A. M. B. F. T. (n.d.). African Commission on Human and Peoples' Rights. African
Commission on Human and Peoples' Rights Legal instruments.
https://www.achpr.org/legalinstruments/detail?id=49.
Organization of American States. Declaration of Principles on Freedom of Expression.
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26. 2021.
United Nations. (n.d.). Universal Declaration of Human Rights. United Nations.
https://www.un.org/en/about-us/universal-declaration-of-human-rights.
The right to free expression, expressed in terms of freedom of speech, is “formally granted by the laws of most nations” (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center in 2015 demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies.
References:
Pew Research Center: “Global Support for Principle of Free Expression, but Opposition to Some Forms of Speech,” November 8, 2015: https://www.pewresearch.org/global/2015/11/18/global-support-for-principle-of-free-expression-but-opposition-to-some-forms-of-speech/ (Accessed November 9, 2022
World Population Review: https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech (Accessed November 9, 2022) +
The right to free expression is not stated explicitly in the United States constitution, though it is universally accepted as covered by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The rights to free speech, press, assembly, and petition are generally viewed are elements of the right to free expression in the USA. +
Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Additionally, there is a legal exception for “fighting words”. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.”
Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated.
Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing.
Lastly, commercial speech may be regulated in order to protect consumers. In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, the Court described a four-part test for determining whether or not the government could limit commercial speech: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.
References:
Schenck v. United States, 249 U.S. 48 (1919): https://supreme.justia.com/cases/federal/us/249/47/
Brandenburg v. Ohio, 395 U.S. 444 (1969): https://supreme.justia.com/cases/federal/us/395/444/
Chaplinsky v. New Hampshire, 315 U.S. 572; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942): https://supreme.justia.com/cases/federal/us/315/568/
Miller v. California, 413 U.S. 37 (1973): https://supreme.justia.com/cases/federal/us/413/15/
New York Times Company v. Sullivan, 376 US 254 (1964): https://supreme.justia.com/cases/federal/us/376/254/
Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 US 566 (1980): https://supreme.justia.com/cases/federal/us/447/557/
Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/wex/defamation#:~:text=Defamation%20is%20a%20statement%20that,for%20defamation%20and%20potential%20damages.
Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution. The United States Supreme Court has gradually portrayed freedom of expression as being implicit in the U.S. Constitution. This reality stems from legitimate discourse on activities that may not fall under the grammatical definition of speech, but nevertheless warrant protection by the judiciary in order for democratic norms to prevail. From early cases pertaining to free religious exercise to several landmark judgments in the latter half of the 20th Century, the Court has introduced and expanded its mythology surrounding free expression. Some forms of expression that may be protected—and regulated—include religious expression, protests, fighting words, imminent threats, obscenity, and expressive student conduct in academic settings.
Prior to various cases dealing with the Free Exercise Clause of the First Amendment, no significant attempt had been made by the court to examine the relationship between free expression and American constitutional law. Despite the separate inclusion of freedom of religion in the Constitution, cases revolving around religious activity have shaped the Court’s commentary on free expression. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court ruled in favor of a group of Jehovah’s Witnesses in New Haven who had been prosecuted for engaging in religious solicitation without a license from the local government. The justices primarily asserted that the Constitution guarantees the “freedom to act” for the Cantwell solicitors, or other groups that engage in religious expression (Justice Roberts, 1940). Solicitation can neither be termed as purely speech or purely expressive, however, due to the combination of speech and physical expeditions that are typically involved. While the freedom to “act” may insinuate a right to engage in expressive activities, the justices never directly mentioned expression—a reality that, combined with the ambiguous nature of soliciting, did not establish expression as a fundamental right.
Given the legal ambiguity established by Cantwell, the Court likely understood the necessity of defining expression as it pertained to religious issues. In Sherbert v. Verner, 374 U.S. 398 (1963), the justices established a compelling interest test for government statutes that potentially abridge certain forms of religious expression. Writing for the majority in response to a lawsuit from a Seventh-Day Adventist who was fired and denied unemployment benefits for refusing to work on Saturday, Justice Brennan asserted that “the imposition of such a condition [labor mandates lacking in exemptions for religious workers] … inevitably deterred or discouraged the exercise of First Amendment rights of expression” for religious groups (Justice Brennan, 1963). Given that this ruling directly mentioned free expression in response to a lawsuit claiming religious discrimination, it can be argued that Sherbert clarified the position of free religious expression implied by Cantwell.
Following several landmark decisions on expression issued by the Warren and Burger Courts, religious exercise reintroduced itself in the ongoing debate over the extent to which freedom of expression can be invoked in the courtroom. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court rejected a Free Exercise Clause challenge of a narcotics statute in Oregon (specifically, one that regulated Peyote, which was ingested by Native American Church adherents as a religious custom) while acknowledging attempts in the past to “punish the expression of religious doctrines [the state] believes to be false” (Justice Scalia, from United States v. Ballard, 322 U.S. 78 (1944). In a ruling that was sharply criticized by religious groups following its release, the Court confirmed the implicit right of expression as it pertains to religion. While it may be argued that the decisions in Cantwell, Sherbert, and Smith merely affirmed the previously enumerated right of free religious exercise, the various references to expression in all three of these decisions fit within a broader line of judicial reasoning in expression-based cases that extend beyond religion, which will be further discussed below.
As Smith indicates, The Court’s acknowledgment of freedom of expression being an implicit right can be evidenced by decisions that limit this right altogether. In ruling that expressive activities that constitute a clear and present danger to the public are not protected, for example, the Court implies that any activities that do not exhibit this danger are lawful. This precedent was established by Schenck v. United States, 249 U.S. 47 (1919), which affirmed the ability of government officials to censor modes of expression (i.e. Charles Schenck's pamphlets, which advocated for illegally avoiding the draft) that impede on the government’s ability to wage war, while acknowledging that such activities may be protected during times of peace. As the distribution of pamphlets would likely constitute expression rather than physical speech, it may be inferred that the justices, in limiting freedom of expression in some cases, acknowledged its legality in others.
The Court furthered this assertion in United States v. O’Brien, 391 U.S. 367 (1968) by ruling that the burning of draft cards in public places during times of war is not protected speech, as the prohibition of this activity was “an important or substantial governmental interest unrelated to the suppression of free expression” (Justice Warren, 1968). In both decisions, the Court chose to constrain—rather than outlaw—forms of expression that cannot be termed as speech. Finally, governmental regulations for public protests were affirmed in Cox v. New Hampshire 312 U.S. 569 (1941), in which the justices asserted that “time, place, and manner restrictions” have the effect of “safeguarding the good order upon which [civil liberties] ultimately depend” (Justice Hughes, 1941). Given that no right can be limited without prior acknowledgement of its existence, it can be argued that the Court implicitly recognized free expression in Schenck and Cox before directly mentioning it in O’Brien.
In light of the Court’s commentary on free expression when confronted with issues pertaining to free exercise and public disturbances, its decisions in Barnette, Tinker, and Morse represent the most notable examples of free expression being recognized as an implicit right. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the court condemned an effort by school administrators to force students to salute the American Flag as an “effort” to “muffle expression” in the schoolhouse (Justice Jackson, 1943). Despite their dissent being primarily motivated by personal religious beliefs, the plaintiffs alleged a violation of the Speech Clause of the First Amendment. The Court clearly interpreted the situation as compelled expression, as defining it as physical speech would not accurately reflect the situation.
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court broadly affirmed the implicit right to free expression in a decision that largely reflected the language of cases that have already been discussed. The justices affirmed that any governmental interest in promoting order in public schools is “not enough to overcome the right to freedom of expression” enjoyed by students, who “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Justice Fortas, 1969). In this instance, the Court emphasized freedom of expression without qualification, as its commentary on restrictions that school officials could plausibly enact without abridging the rights of students serves to further affirm the existence of free expression. This rationale was reaffirmed by Morse v. Frederick, 551 U.S. 393 (2007), in which the Court limited student speech (or, more precisely, displaying a banner) that can be “reasonably regard[ed] as promoting illegal drug use,” which remains a major example of the judiciary restricting the implicit right of free expression (Justice Roberts, 2002). In reaffirming and providing exceptions for the precedent set by Tinker (with the exception of Justice Thomas, who called for Tinker to be overruled), the Court maintained its record of acknowledging and limiting free expression.
Following the Court’s landmark decision in Tinker, the question of implicitness was all but resolved, and nearly all subsequent cases served to determine the scope—rather than legitimacy—of free expression. Eventually, the justices were again confronted with the issues of anti-war expression and profanity following peace activist Paul Cohen’s arrest in a California courthouse for wearing a shirt depicting an explicit anti-war slogan. In Cohen v. California 403, U.S. 15 (1971), the Court asserted that California’s law prohibiting such behavior “infringed [Cohen's] rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution,” which were extended to the states via selective incorporation through the Due Process Clause (Justice Harlan, 1971). In Texas v. Johnson, 491 U.S. 397 (1989), the Court again confronted the issue of expression deemed profane by governmental actors in ruling that the burning of the American Flag represented “expressive conduct” that was “sufficiently imbued with elements of [political] communication,” making it protected under the Due Process Clause (Justice Brennan, 1989).
In Cohen and Johnson, the Court rejected attempts by state government officials to impose limitations on forms of expression it viewed as offensive to the general public—a remarkable feat for freedom of expression, which would nevertheless be limited in other cases. Expression pertaining to pornographic material was hindered in Miller v. California, 413 U.S. 15 (1973), which concerned the right (or lack thereof) of businesses to distribute explicit content through the U.S. Postal Service. In ruling that obscene expression can be regulated while “acknowledging the inherent dangers of undertaking to regulate any form of expression,” the Court established a clear standard for certain forms of explicit expression that can be regulated (Justice Burger, 1973). In Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015), the justices ruled that state governments can reject proposed license plate designs on account of their potential to offend the general public due to their established history of “communicat[ing] messages from the States.” In particular, the Court cited Arizona's “Hereford Steer” License Plate, New Hampshire's “Old Man of the Mountain” License Plate, and various other examples of license plates in other states to affirm this argument (Justice Breyer, 2015).
In summary, the implicit right of free expression has developed from the commentary of free exercise cases and evolved into an implied right that the Supreme Court no longer questions. It does not contain any strict limitations, as any standard beyond the establishment of an overbearing governmental interest would negate its effect of addressing the shortcomings of the free speech clause.
Cantwell v. Connecticut, 310 U.S. 296 (1940)
https://supreme.justia.com/cases/federal/us/310/296/
Sherbert v. Verner, 374 U.S. 398 (1963)
https://supreme.justia.com/cases/federal/us/374/398/
Employment Division v. Smith, 494 U.S. 872 (1990)
https://supreme.justia.com/cases/federal/us/494/872/
United States v. Ballard, 322 U.S. 78 (1944)
https://supreme.justia.com/cases/federal/us/322/78/
Schenck v. United States, 249 U.S. 47 (1919)
https://supreme.justia.com/cases/federal/us/249/47/
United States v. O’Brien, 391 U.S. 367 (1968)
https://supreme.justia.com/cases/federal/us/391/367/
Cox v. New Hampshire 312 U.S. 569 (1941)
https://supreme.justia.com/cases/federal/us/312/569/
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
https://supreme.justia.com/cases/federal/us/319/624/
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
https://supreme.justia.com/cases/federal/us/393/503/
Morse v. Frederick, 551 U.S. 393 (2007)
https://supreme.justia.com/cases/federal/us/551/393/
Cohen v. California 403, U.S. 15 (1971)
https://supreme.justia.com/cases/federal/us/403/15/
Texas v. Johnson, 491 U.S. 397 (1989)
https://supreme.justia.com/cases/federal/us/491/397/
Miller v. California, 413 U.S. 15 (1973)
https://supreme.justia.com/cases/federal/us/413/15/
Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015)
https://supreme.justia.com/cases/federal/us/576/200/
Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.
The following country-specific descriptions are from a 2019 US Government Report.
Argentina: Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals.
Canada: The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections.
China: China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government.
France: The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests.
Germany: German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap).
Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.
Japan: The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful.
Netherlands: The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not.
New Zealand: New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.”
Sweden: Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans.
America places these restrictions on speech much less frequently, or not at all.
Hate Speech: Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.
Blasphemy: About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws).
Political Content: Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.”
Public Deliberations: It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign.
Proportionality Analysis: Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.
References:
US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/
RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul
Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action
Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/
Island School District v. Pico: https://www.oyez.org/cases/1981/80-2043
Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television
Article on German Bill: https://www.dw.com/en/germanys-government-approves-hate-speech-bill/a-52433689
Article on EU hate speech: https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Sp eech
Blasphemy internationally: https://www.uscirf.gov/reports-briefs/special-reports/respecting-rights-measuring-the-world-s-bl asphemy-laws
Blasphemy in Italy: https://end-blasphemy-laws.org/countries/europe/italy/
US Government Report on Free Expression Abroad (info on China, for example): https://fas.org/irp/eprint/lloc-limits.pdf
Japanese Penal code: http://www.japaneselawtranslation.go.jp/law/detail/?id=1960&vm=04&re=02
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 2009, 838). It has refused to protect “revisionist language” (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 2016, 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 (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.
References:
Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/
European Convention of Human Rights: https://www.echr.coe.int/Documents/Convention_ENG.pdf
American Convention: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm
Posenato: https://www.researchgate.net/publication/295244849_THE_PROTECTION_OF_THE_RIGHT_ TO_FREEDOM_OF_EXPRESSION_A_PANORAMA_OF_THE_INTER-AMERICAN_COU RT_OF_HUMAN_RIGHTS_CASE_LAW_A_PROTECAO_DO_DIREITO_A_LIBERDADE_ DE_EXPRESSAO_UM_PANORAMA_DA_JURISPRUDENCIA_DA_COR/link/56e9708808a edfed7389909f/download
International Covenant on Civil and Political Rights: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Article about whether and how the ICJ enforces human-rights law: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=njih r
Flauss: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1124&context=ilj
Cairo Declaration: http://hrlibrary.umn.edu/instree/cairodeclaration.html
African Charter: https://www.achpr.org/legalinstruments/detail?id=49
Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), https://en.unesco.org/sites/default/files/african_courts_decisions_final_eng_1.pdf
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).
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.
References:
US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/
Fighting words: https://www.mtsu.edu/first-amendment/article/293/chaplinsky-v-new-hampshire
US v. Obrien: https://www.mtsu.edu/first-amendment/article/709/united-states-v-o-brien#:~:text=In%20United %20States%20v.,of%20an%20anti%2Dwar%20protester.
RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul
Tinker v. Des Moines: https://www.oyez.org/cases/1968/21
Bethel v. Fraser: https://www.oyez.org/cases/1985/84-1667
Morse v. Frederick: https://www.oyez.org/cases/2006/06-278
Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action
Libel info: https://www.freedomforum.org/libel/
Hustler v. Falwell: https://www.oyez.org/cases/1987/86-1278
Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/
Info on assembly: https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html#:~:t ext=No%20First%20Amendment%20rights%20are,raises%20a%20%E2%80%9Cclear%20and %20present
Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television
Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the "harm principle." This, Mill claims, is the only context in which power can be "rightfully" executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an "offense principle" is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a "negative mental state" (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).
References:
Mill, JS On Liberty
Simpson, Robert Mark. “Regulating Offense, Nurturing Offense.” Politics, philosophy & economics 17, no. 3 (2018): 235–256.
Freedom of expression exists at the core of the United States of America and the freedoms it guarantees to its people. Beyond a core tenet in America, freedom of expression holds a defining place in democracies around the world, shaping their culture and development. Article 19 of the International Covenant on Civil and Political Rights, adopted by the United Nations in December 1966, explains how freedom of expression “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” (U.N. General Assembly 1966, art. 19). With such importance, infringement upon this freedom can be extremely contentious. In US history, this context has resulted in the development of the State Action Doctrine as delivered by the Supreme Court. According to the State Action Doctrine, “the US Constitution in general, and its individual rights in particular, apply only to state action, not to private action” ("State Action" 2017). In understanding the question of whether private actors curtail freedom of expression, the State Action Doctrine responds with a definite yes. This understanding has been developed through a series of court cases, creating a precedent that allows for private actors to breach free expression.
In United States v. Cruikshank, the Supreme Court ruled “the 14th Amendment's Due Process and Equal Protection Clauses applied only to state action, and not to violations of civil rights by individual citizens.” (United States v. Cruikshank, 1875). This landmark decision took place following the Colfax Massacre wherein “300 white Democrats, many of them former Confederate soldiers,” were hoping “to dislodge an armed cadre of 150 freedmen and white Republicans who had barricaded themselves inside” in order to protect an election (Pusey 2021, 72). Due to the absence of civil rights protections in Louisiana, where the Colfax Massacre occurred, the state bore no responsibility and could not prosecute individuals for violating others' rights. This case is relevant to understanding how freedom of expression can be curtailed by private actors. It set a precedent that allowed private actors to infringe upon others' rights, such as voting, because of the state's lack of responsibility.
While legal precedents focus on the ability to discriminate, freedom of expression remains relevant because the freedoms “of speech, of the press, of association, of assembly and petition,” that comprise expression can be subject to that discrimination (ACLU, 2002). Further legal contributions exist along with social media usage statistics that present high percentages of US adults using various platforms. A Pew Research report found that 83% of US adults reported they ever used Youtube, 68% used Facebook, and 47% used Instagram (Pew Research Center, 2024). The private actors that run social media companies are able to curtail freedom of expression aided by Section 230 of the 1996 Telecommunications Act. This provided “immunity to those that screened or removed offensive or indecent material that was posted on their sites by third parties” (First Amendment Encyclopedia, s.v. "Communications Decency Act and Section 230"). Originally created to “prevent minors from gaining access to sexually explicit materials on the internet,” the Telecommunications Act of 1996 has granted media platforms the ability to tailor violations of freedom of expression. Instagram, a social media platform used by just under 50% of Americans, explains their terms for content removal within their community guidelines (Pew Research Center, 2024) They “may remove entire posts if either the imagery or associated captions violate their guidelines,” some of those violations being nudity, promoting hate speech, and bullying amongst others (Instagram Help Center, n.d.). With laws and legal precedents to support infringement and equal opportunity and anti-discrimination policies protecting people’s freedoms, private actors are certainly able to curtail freedom of expression, but with limitations.
References
ACLU. 2002. “Freedom of Expression.” American Civil Liberties Union. March 1, 2002. https://www.aclu.org/documents/freedom-expression.
"Communications Decency Act and Section 230." First Amendment Encyclopedia. Accessed June 24, 2024. https://firstamendment.mtsu.edu/article/communications-decency-act-and-section-230/#:~:text=To%20encourage%20internet%20service%20providers,their%20sites%20by%20third%20parties.
Instagram Help Center. s.v. "Privacy Settings." Accessed June 24, 2024. https://help.instagram.com/477434105621119#.
Pusey, Allen. "Colfax Massacre Convictions Tossed: March 27, 1876." ABA Journal 107, no. 1 (February-March 2021): 72. Gale Academic OneFile. Accessed June 20, 2024. https://link.gale.com/apps/doc/A653471522/AONE?u=anon~c9675132&sid=bookmark-AONE&xid=4c07453e.
Pew Research Center. "Social Media Use in 2024." Pew Research Center. January 31, 2024. Accessed June 24, 2024. https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2024/01/PI_2024.01.31_Social-Media-use_report.pdf.
"State Action." Max Planck Encyclopedia of Comparative Constitutional Law. Last modified February 2017. https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e473#:~:text=The%20state%20action%20doctrine%20of,action%2C%20not%20to%20private%20action.
U.N. General Assembly. 1966. International Covenant on Civil and Political Rights. Treaty Series, vol. 999, p. 171. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
United States v. Cruikshank. 92 U.S. 542 (1875).
Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president ("Alien and Sedition Acts"). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime ("Schenck v. United States"). It also established, for the first time, the "clear and present danger" test, clarifying that "the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent ("Schenck v. United States"). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was "was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government" (Hudson). In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of "public peril." This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).
War may justify limitations on expression. This has long been true in the US; as Justice Holmes wrote in Schenck v. US (1919), a case over anti-draft publications, “when a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” During the Civil War, President Lincoln prohibited the publishing of information of troop movements, and government officials censored newspapers critical of the Union. During WWI, the US passed legislation such as the Sedition Act, which sought to eliminate speech “urging any curtailment of the war with intent to hinder its prosecution.” The Supreme Court has at times limited the wartime justification for restrictions. This occurred in New York Times v. US (1971), where the government was not allowed to censor publication of the Pentagon Papers, which contained information about the Vietnam War (Hudson). Contemporary jurisprudence would likely not justify some restrictions that have been allowed in the past. Schenck was decided using the clear and present danger test, which has been superseded by the more stringent imminent lawless action test (Parker). Had the newer test been used, Schenck may have been decided differently; the dissent argued that speech should be restricted only when it “imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country” (Parker). The COVID-19 pandemic has caused press crackdowns in various countries, often to downplay the outbreak’s severity. Egypt and Iran, for example have systematically curtailed reporting on the epidemic (Egypt guarantees freedom of expression in its Constitution, though this has long not been the case in practice (“Egypt). Iran guarantees free press subject to derogation in the national interest or under “Islamic criteria”). Honduras went so far as to suspend the clause in its constitution guaranteeing free speech. South Africa has curtailed free speech, albeit not to promote a rosy view of the pandemic. Rather, it has criminalized misinformation (Simon 2020). Responses to the pandemic provide insight into potential restrictions during other disasters. If a large part of Egypt or Iran were leveled by an earthquake, their governments might restrict free speech to ensure that only positive information about the recovery effort surfaces. Similarly, the South Africans who support criminalizing pandemic misinformation may also support criminalizing hurricane-safety misinformation if such a storm barrelled toward South Africa (putting aside whether this is meteorologically possible). As is argued in a report by the organization Article 19, free expression may be of even greater importance than normal during an emergency. Citizens need complete access to the truth so that they can make decisions about their safety (6). Free expression is an excellent way to ensure this truth comes out.
References:
Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo
Parker: https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test m%20of%20speech%20often%20suffers,backseat%20to%20security%20and%20order.&text=In %20other%20words%2C%20the%20Supreme,than%20in%20times%20of%20peace.
Simon: https://www.cjr.org/analysis/coronavirus-press-freedom-crackdown.php
Egyptian Constitution: https://www.constituteproject.org/constitution/Egypt_2014.pdf
“Egypt”: https://www.amnesty.org/en/latest/news/2018/09/egypt-unprecedented-crackdown-on-freedom-o f-expression-under-alsisi-turns-egypt-into-openair-prison/
Iranian Constitution: https://www.wipo.int/edocs/lexdocs/laws/en/ir/ir001en.pdf
Article 19 Report: https://www.article19.org/data/files/pdfs/publications/freedom-of-information-humanitarian-disa sters.pdf
The phrase “living constitutionalism” was first coined in Howard Lee McBain’s 1927 book The Living Constitution (Solum 1256, 2019). Although the theory was only beginning to form, the book provided the foundations of living constitutionalism that we know today: “The following passage illustrates McBain’s notion of a living constitution: ‘A word’, says Mr. Justice Holmes, ‘is the skin of a living thought.’ As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase” (Solum, 2019).
Ultimately, the fundamentals of living constitutionalism rely upon the laws of the Constitution being evolutionary, able to change over time, and adaptable to new circumstances and times without the difficult and time-consuming formal amendment process (Strauss, 2010). In a constantly changing world with advancements in technology, changes in international, diplomatic, and social relations, as well as economic evolution, the Constitution does need to be flexible to a certain degree (Strauss, 2010). However, the idea of a Constitution that constantly changes over time cannot entirely be; “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution.” (Strauss, 2010). Scholar James E. Fleming goes on to explain that:
“Strauss describes common-law constitutional interpretation as an evolving process of developing precedent and tradition, coupled with judgments of fairness and good policy. So far, so good. But some of his formulations make it sound like judges engaged in this process make judgments of fairness and good policy as if they were simply making pragmatic judgments rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate the abstract moral and political principles to which the Constitution commits us – or judgments about how best to realize our aspirational principles. He acknowledges this point elsewhere in the book, e.g., where he speaks of common-law courts as relying on “general principles derived from precedents and on its judgments about good policy.” Likewise, he refers to “a living constitution that exists apart from the text and the original understandings – that exists in, for example, the principles that protect freedom of expression and those of Brown v. Board of Education.” In short, we should conceive the Constitution as a framework or scheme of abstract aspirational principles that we elaborate through common-law constitutional interpretation” (Fleming 1178, 2011).
Regarding specifically freedom of expression in the First Amendment, the principles of freedom of expression that we know today did not become established in law until over a century after the Constitutions ratification (Strauss 52, 2010). The views of the drafters of the First Amendment drafters is unclear according to the wording of the rights, and even further “There is, in fact, good evidence that the people responsible for adding the First Amendment to the Constitution would have been comfortable with forms of suppression that would be anathema today… The central features of First Amendment law were hammered out in fits and starts, in a series of judicial decision and extrajudicial developments, over the course of the twentieth century” (Strauss 52-53, 2010).
The components within the First Amendment that protect the freedom of expression can be broken down into two main categories. First, the 1964 case of New York Times v. Sullivan helped to solidify the protection of the people’s right to criticize the government. The case was the first to place limitations upon the government’s ability to fine individuals who defame public officials (Strauss 53-54, 2010). Then five years later, in Bradenburg v. Ohio, it was decided by the Court that you, as an individual, can exercise your right to freedom of speech and expression by going as far as advocating for violence and/or use of force legally “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (Strauss 54, 2010). Along the same vein, in the 1971 case of New York Times co. v. United States, the Court decided that the Pentagon papers (top secret government documents that revealed diplomatic secrets and detailed American involvement in the Vietnam war) were legally published by the New York Times seeing as the publication did not “surely result in direct, immediate, or irreparable damage to our Nation or its people” (Strauss 54, 2010). All these cases came together to underline the fact the people have the right to broad freedom of speech and expression. The government cannot infringe upon this right unless there is clear evidence that suggests other laws will be broken as a result of the exercising of the right; this is a very different image than what the drafters of the First Amendment presumably pictured.
Second, within living constitutionalism, under the protection of the right to freedom of expression, there is a hierarchy in terms of which circumstances of exercising the right require the most protection from the Constitution and which the Constitution does not protect at all: “Certain values of low-value speech should receive less or no constitutional protection” (Strauss 55, 2010). Low-value speech, or relatively unimportant speech, includes instances of “obscenity, commercial speech, false and defamatory statements, perjury, blackmail, threats, criminal solicitation…” (Strauss 55, 2010). In lawmaking, laws must not infringe upon one’s rights to freedom of high-value speech, or relatively more important speech such as criticism of the government and public debate.
All this is in effect now because of the courts’ interpretations of the Constitution under living constitutionalism. The application of the Constitution now is very different from its first ratification. For example, eventually the Bill of Rights extended to states, but for a hundred years they did not extend to the states, and ultimately, the states were able to restrict freedom of expression freely and legally (Strauss 56, 2010). Also the focus of lawmaking has changed: “When the framers adopted the First Amendment, they were concerned with the balance of power between the federal government and the states and not just about protecting free expression in general. The entire focus of the debate over the First Amendment was on the federal government and on making clear that the Constitution’s grants of various powers to Congress did not include the power to restrict free speech or the press” (Strauss 59, 2010). The states, seeing as they were viewed as much more independent then, and federalism was much weaker, were seeking to protect their territories from an overly-powerful federal government and possible restrictions that could ensue. Ultimately, living constitutionalism has permitted for the practice of freedom of expression that we have today while still trying to maintain the central principles and themes of the American government granted to it by the Constitution.
Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).
Americans are often proud of their nation’s commitment to free speech; according to US jurisprudence, content-based restrictions on speech are generally unconstitutional unless they directly prevent criminality or public danger. Americans also tend to venerate the founding fathers, learning from a young age that the colonies courageously overthrew the British tyrants. Although free speech is enshrined in the Bill of Rights, the unique status that American courts have afforded free expression has little basis in originalism. Rather, such strong free-speech protection is a product of living-constitution theory and America’s modern notions of civil libertarianism. Originalist generally understand the First Amendment’s primary purpose as protecting political speech - not the broad speech protections we observe today. Justice Scalia, who was perhaps the country’s most prominent originalist, wrote the following sentence in his opinion of McConnell v. FEC: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Many key free-expression cases, including arguably the two most important in establishing a standard for content-based restrictions, did not draw on originalist thought. The Supreme Court’s opinion in Schenck v. US (1919), which established the clear and present danger test, draws on no founding-era understanding of the Constitution to defend this standard. Ditto for Brandenberg v. Ohio (1969), where the court replaced clear and present danger with the more-stringent imminent lawless action test. Obviously, there have been many other important free-speech cases. Still, the lack of originalist insight on such important cases is telling. Modern free-expression jurisprudence demonstrates more fidelity to living constitution theory than to originalism. As the University of Chicago’s David A. Strauss articulated, “a living Constitution is one that evolves, changes over time, and adapts to new circumstances” (2010). As such, free-speech interpretation can shift to meet the needs of a changing nation According to SMU’s Christopher Wolfe, seditious speech was accepted early in the nation’s history as an exception to the First Amendment because the nation’s stability was not a given then as it is today (2019, 536-7). Today, however, courts can reevaluate anti-government speech in light of the fact that the US is a global superpower.
There is even some evidence that the Supreme Court takes public opinion into consideration (Epstein and Martin 1). This might help explain why the court has moved toward broad free-speech protections in a country where free speech is a huge aspect of political culture (although this begs the question of whether causation occurs in the opposite direction).
School-speech cases exemplify the different First-Amendment Jurisprudence produced by living-constitution and originalist theory. Justice Thomas issued a strikingly originalist opinion in Morse v. Frederick (2007). Thomas analyzed the history of US public schools, which proliferated in the early 1800s (Thomas 2007, 2). He argues that early public schools “were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled ìa core of common valuesî in students and taught them self-control.” He concludes that because students in this area were not seen as having First-Amendment rights, neither are today’s. Meanwhile, in the court’s majority opinion in the landmark case Tinker v. Des Moines (1969), the court cited the following passage from Shelton v. Tucker (1960): “The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection." Here, it is argued that the First Amendment should protect schools’ current and future function as a breeding ground for ideas, regardless of whether such a function existed early in our nation’s history.
References:
Wolfe: https://scholar.smu.edu/cgi/viewcontent.cgi?article=4807&context=smulr
Fallone: https://law.marquette.edu/facultyblog/2018/12/on-originalism-and-the-first-amendment/ Dailey: https://open.bu.edu/bitstream/handle/2144/24083/Dailey_bu_0017N_12912.pdf?sequence=5
McConnell v. FEC: ttps://www.law.cornell.edu/supct/html/02-1674.ZX.html
Schenck v. US: https://www.law.cornell.edu/supremecourt/text/249/47
Brandenburg v. Ohio: https://www.law.cornell.edu/supremecourt/text/395/444
Strauss: https://www.law.uchicago.edu/news/living-constitution
Epstein and Martin: http://epstein.wustl.edu/research/supctEMPubOp.pdf
Morse v. Frederick: https://www.mtsu.edu/first-amendment/article/690/morse-v-frederick
Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, James E. Fleming, 1178, Boston University School of Law, 2011 Boston.
Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, Lawrence B. Solum, 1256, Northwestern University Law Review, 2019 Evanston.
The Living Constitution, David Strauss, 52-59, Oxford University Press, 2010 Oxford.
The Living Constitution, David Strauss, The University of Chicago Law School, 2010 Chicago.