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Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression.
On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression.
Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in "A New Interpretation of Chinese Taoist Philosophy", “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.
References:
“Daniel Bell: What Would Confucius Make of Free Speech in the Internet Age?” Free Speech Debate, freespeechdebate.com/media/daniel-bell-on-confucianism-free-speech/.
The Analects of Confucius. chinatxt.sitehost.iu.edu/Analects_of_Confucius_(Eno-2015).pdf.
Pines, Yuri. “Legalism in Chinese Philosophy.” Stanford Encyclopedia of Philosophy, Stanford University, 16 Nov. 2018, plato.stanford.edu/entries/chinese-legalism/#TilSolRulPeo.
Freedom of Expression in China: A Privilege, Not a Right.” Freedom of Expression in China: A Privilege, Not a Right Congressional-Executive Commission on China, www.cecc.gov/freedom-of-expression-in-china-a-privilege-not-a-right.
Sheng-Li, You. “A New Interpretation of Chinese Taoist Philosophy.” Google Books, Google, books.google.com/books?id=SEkjW5Xjm6oC&pg=PT244&lpg=PT244&dq=taoism%2Band%2Bfree%2Bspeech&source=bl&ots=GU0DYRvvjk&sig=ACfU3U3iQSkzEC2ngOJUx7K63jYk9AQrrw&hl=en&sa=X&ved=2ahUKEwi158vBpr7qAhVEgXIEHUFzBrwQ6AEwEHoECAsQAQ#v=onepage&q=taoism%20and%20free%20speech&f=false.
Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today.
Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001).
In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.
References:
Aristotle and the Origins of Natural Rights, Fred D. Miller Jr., 878, 880, Philosophy Education Society Inc., 1996 United States.
Aristotle: Politics, Edward Clayton, Internet Encyclopedia of Philosophy, 2020 United States.
The First Founding Father: Aristotle on Freedom and Popular Government, Gregory R. Johnson, 30, 32, 36, 38-39, 44, Hoover Institution Press, 2001 Stanford.
The Value of Free Speech, Harvey C. Mansfield, American Enterprise Institute, 2018 Washington D.C.
To Bentham, the purpose of free expression, especially press, is to identify and censure government abuses, which Bentham believed would have more positive than negative consequences. Like other liberties in Bentham’s thought, it is an instrumental right, not an intrinsic right (Niesen 2019, 4). He worried that a chilling effect would prevent the press from serving its purpose, and he opposed censoring of “bad sentiments” (something Blackstone supported) because he did not trust society’s ability to identify them. Bentham not only advocated for the protection of true statements, but of false ones, provided they were not “‘groundless’ and made with ‘wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness” (Niesen 5). A “wilful mendacity” standard resembles the “actual malice” standard of contemporary American jurisprudence on libel of a public figure.
References:
Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046. +
The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism.
In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, & Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism.
In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).
In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe.
Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression.
Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.
References:
Buddhism and Democracy, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, His Holiness The 14th Dalai Lama of Tibet, 1993 Washington D.C.
Buddhism and Free Speech, Sanitsuda Ekachai, Bangkok Post, 2015 Bangkok.
Buddhism and Human Rights, Wayne R. Husted, Damien Keown, Charles S. Prebish, 20, Curzon Press, 1998 Richmond.
Buddhism, Asian Values, and Democracy Journal of Democracy, vol. 10 no. 1, Bstan-dzin-rgya-mtsho, Dalai Lama XIV, 4, Johns Hopkins Press, 1999 Baltimore.
Buddhism: Basic Beliefs, United Religions Initiative Editors, United Religions Initiative, 2020 San Francisco.
Conditions of an Unforced Consensus on Human Rights, Charles Taylor, 101, Verso, 1999 New York.
Human Rights and Global Diversity: Human Rights, Compatibility, and Diverse Cultures, Simon Caney, 68, Taylor and Francis Group, 2007.
Peek, John M. "Buddhism, Human Rights and the Japanese State." Human Rights Quarterly 17, no. 3 (1995): 534. Accessed July 8, 2020. www.jstor.org/stable/762392.
Roth, Beth. “Right Speech Reconsidered - The Eightfold Path.” Tricycle, 29 Jan. 2020, tricycle.org/trikedaily/family-dharma-right-speech-reconsidered/.
Walton, Matthew J. “What Did the Buddha Mean by 'Right Speech'?” Free Speech Debate, 10 Feb. 2015, freespeechdebate.com/discuss/what-did-the-buddha-mean-by-right-speech/.
TThe late seventeenth century was a period of great philosophical advancement. Falling roughly at the close of the Enlightenment movement, the late 1900s and early 1700s saw an expansion in the European discourse on rights and liberties within political society. While rationalists during this time period generally did not deal with specific freedoms of the citizens in their writings, writers like Leibniz and Spinoza do reveal a tendency in the early-modern rational tradition to consider the benefits of citizens’ unrestrained expression. Sources do not indicate that these philosophers were thinking of free expression in terms of right or liberty, but their writings nevertheless reveal shades of support for the concept. Leibniz was a prolific writer who produced a plethora of work spanning a wealth of topics, but some of his most important work relating to freedom and liberty occurred in the field of political philosophy. In his “Reflections on the Common Concept of Justice,” he explains his thoughts on justice within political society and the transfer of right between citizen and state. In response to Hobbes’ argument in Leviathan, Leibniz explains that he thinks it impossible for an individual to transfer all of their freedom unto a sovereign in exchange for membership and security within a state. “In the end,” he writes, “in spite of what Hobbes says, each one has retained his right and his liberty regardless of the transfer to the state, and this transfer will be provisional and limited, that is, it will take place to the degree that we believe our safety is involved” (Leibniz, 573). This does not deal specifically with the right to liberty of expression, but it certainly implies that there are certain freedoms that the citizen retains within the context of wider society. Coupled with his definition of justice as “a constant will to act in such a way that no person has reason to complain of us,” it is not unreasonable to conclude that freedom of expression could be included in the set of liberties that Leibniz believes are not transferred to the sovereign in political society. (Leibniz, 566).
Of course, Leibniz never directly argues in favor of the protection of the right to freedom of expression, so it is unclear whether he viewed it as an inalienable, natural right. The idea that certain forms of expression could potentially give a person “reason to complain” of another was certainly familiar to early-modern Europeans; defamation and libel laws had existed in England since the reign of Edward I (Statutes of the Realm). This means that Leibniz would have understood how certain forms of expression could be harmful to political society, and it is possible that he would have viewed certain forms of expression as unjust and therefore unprotected by natural right. Ultimately, Leibniz would have based his views on freedom of expression in his classification of the right itself. If he thought of it as an intrinsic natural right which citizens were incapable of giving up, then he likely would have viewed state restrictions on speech or demonstration as inherently impermissible. Unfortunately, Leibniz does not address specific rights, such as that to freedom of expression, within his discourse.
Spinoza, on the other hand, deals somewhat more specifically with the freedom of expression, though he also refrains from advocating for it outright. Spinoza’s support for free expression within society stems from his belief that the state can never truly force belief upon its subjects. He does not address freedom of thought and expression; he sees them as inevitable. In his Theological-Political Treatise, h e discusses the rights and liberties that the individual surrenders to the state when he or she enters into political society under the sovereign. When he considers the state’s ability to impose belief upon its citizens, he concludes that “the individual justly cedes the right of free action, though not of free reason and judgment; no one can act against the authorities without danger to the state, though his feelings and judgment may be at variance therewith; he may even speak against them, provided that he does so from rational conviction” (Spinoza, 195). Elsewhere in the Treatise, he writes that:
“I have thus shown:—I.That it is impossible to deprive men of the liberty of saying what they think. II.That such liberty can be conceded to every man without injury to the rights and authority of the sovereign power, and that every man may retain it without injury to such rights, provided that he does not presume upon it to the extent of introducing any new rights into the state, or acting in any way contrary to the existing laws.” (Spinoza, 199)
Like Leibniz, Spinoza does not take issue with an individual’s freedom of belief, nor does he see any reason that a citizen’s right to express themself should be restricted. It is important to note that both thinkers limit the citizen’s liberty, whether it relates to speech or not, to action that does not break any of the sovereign’s laws. Neither philosopher believed that a sovereign’s word was always morally just, but both nevertheless took issue with a citizen’s blatant violation of the law.
References:
Britain., Great. “The Statutes of the Realm : Printed by Command of His Majesty King George the Third, in Pursuance of an Address of the House of Commons of Great Britain. From V.1.”
HathiTrust, babel.hathitrust.org/cgi/pt?id=pst.000017915496.
Johns, Christopher. “The Grounds of Right and Obligation in Leibniz and Hobbes.” The Review of Metaphysics, vol. 62, no. 3, 2009, pp. 551–574. JSTOR, www.jstor.org/stable/40387825. Accessed 30 July 2020.
“Reflections on the Common Concept of Justice (1702[?]).” Philosophical Papers and Letters, by Gottfried Wilhelm Leibniz and Leroy E. Loemker, Kluwer Academic, 1989.
Spinoza, Benedictus de, and R. H. M. Elwes. The Chief Works of Benedict De Spinoza. G. Bell, 1891, oll resources.s3.amazonaws.com/titles/1710/Spinoza_1321.01_EBk_v6.0.pdf.
Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledged that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).
References:
Cornwell, Nancy C. “Rethinking Free Expression in the Feminist Classroom: The Problem of Hate Speech.” Feminist Teacher 12, no. 2 (1998): 107–18. http://www.jstor.org/stable/40545815.
Hobbes never advocates for a right to free expression. Rather, he argues that a commonwealth should censor opinions and publications promoting doctrine that undermines its wellbeing. He states that it is “annexed to the Soveraignty, to be Judge of what Opinions and Doctrines are averse, and what conducing to Peace; and consequently, on what occasions, how farre, and what, men are to be trusted withall, in speaking to Multitudes of people; and who shall examine the Doctrines of all bookes before they be published. For the Actions of men proceed from their Opinions; and in the wel governing of Opinions, consisteth the well governing of mens Actions, in order to their Peace, and Concord” (202). Despite Hobbes’ often totalitarian views, Hobbes advocates at least some liberty of expression, religion, and association. Hobbes only supported restrictions on liberty when it would have a tangible benefit to the state. In Elements of Law, he argues “that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth” (1640, 9-4). In Behemoth, he even argues that “suppression of doctrines does but unite and exasperate, that is, increase both the malice and power of them that have already believed them” (Hobbes 1681). Although Hobbes’ preference is liberty, he does not seem to have a particularly high standard for classifying ideas as seditious. He considered Christian views that violating conscience is a sin and that sanctity and faith are achieved through relations with the supernatural, not reason, to be seditious (Curley 1). One can see how these views would hurt a state - the idea about violating conscience could promote disobedience. Still, these views are nowhere near problematic to meet the standards for censorship employed by most modern Western governments.
References:
Leviathan: https://www.fulltextarchive.com/pdfs/Leviathan.pdf Curley: https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf
Elements of Law: http://library.um.edu.mo/ebooks/b13602317.pdf
Behemoth: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dialogue-behemoth-rhetoric
Freedom of Expression/Philosophical Origins/Tradition contributions/Lockean Thought/English Empiricism +
Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In A Letter Concerning Toleration, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).
References:
A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf
Daniel: https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1154&context=student_scholarship +
Free expression is not a central tenet of Marxism. However, Marx’s early writings display a distaste for censorship. In 1842 he wrote that “the real, radical cure for the censorship would be its abolition” (Marx 1842). Though he strays from this topic in his later writing, he never repudiated his earlier opinions (Heinze 2018). Heinze argues that the idea that Marxism is inherently anti-free-speech is a misconception (regardless of how some specific Marxist regimes have operated). Marx rejected some rights - property rights - because they served the interests of the wealthy and powerful. But free speech is different because it does not serve an underlying interest that Marx opposed.
References:
Marx 1842: https://www.marxists.org/archive/marx/works/1842/02/10.htm
Heinze 2018: http://humanityjournal.org/blog/karl-marxs-theory-of-free-speech-part-1/#_ftn5 +
John Stuart Mill elaborates on utilitarian ideas of using free speech in furtherance of better governance; he argued that all opinions should be allowed because public discourse will separate good ideas from bad ones (Niesen 7). This is known as the “marketplace of ideas” argument. Under this theory, even false beliefs have their place (Mill believed opinions could have truth or falsity), because they can lead public discourse to discover truth (Niesen 9). Mill makes little distinction between opinion and fact because they complement each other (Niesen 10). In Law of Libel, Mill argues that finding true ideas requires an understanding of facts (Niesen 12). Mill would not guarantee the right to voice untrue facts (Niesen 12). There is scholarly debate as to whether there is room in Mill’s thought for governments to limit the expression of true facts in certain situations. Niesen cites a thought experiment put forth by Jonathan Riley, where someone publishes pornographic material of an ex-lover, an act which conflicts with the other party’s right to self-determination. Niesen argues that this could plausibly be considered an expression of fact whose purpose is not to aid in the formation of public opinion, and a Millian government may ban this form of speech.
US courts, including the Supreme Court, have invoked the marketplace of ideas theory hundreds of times over the past century (Schultz & Hudson 2017). For a recent example, in 2017, the Supreme Court invalidated a federal law banning offensive terms in trademarks, drawing on the marketplace of ideas theory in its unanimous opinion (Hudson 2017).
References:
Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046.
Schultz and Hudson: https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas
Hudson: https://mtsu.edu/first-amendment/article/1528/matal-v-tam +
Although Physiocrats stress the importance of economic freedom, critics place them within the realm of enlightened despotism. Tocqueville classifies the physiocrats as having “little liking for political freedom” (Cavanaugh 38). Physiocrats believed that a central authority figure was needed to create prosperity by following the principles of natural law (Cavanaugh 42). Most physiocrats’ research examines their economic stances, in fact, it overwhelmingly focuses on their economic theories. However, using their economic perspectives, one can extrapolate their beliefs on general rights and liberties. The physiocrats fundamentally believe in laissez faire—that the economy was over-regulated and taxation was overwhelmingly indirect. They believed that the government should take a hands-off economic approach and let the market regulate itself. This can be expanded into their views of personal rights and liberties. The physiocrats believed in the natural, inherent rights of man and believe these rights should not be regulated except in the instance where man infringes on the rights of others (Higgs 1897). The physiocrats do not believe that men do not compromise on rights in any instance, including when they enter into a social contract (Higgs 1897). Thus, even the state must be subservient to the rights of man. This philosophy is based on the idea of society collectively benefitting or losing based on the actions of individuals (Higgs 1897). Men can maintain all of their rights, with the understanding that an infringement on another individual’s rights would be collectively bad for society in which they both reside (Higgs 1897).
References:
Henry Higgs, The Physiocrats (1897)
Cavanaugh, Gerald J. “Turgot: The Rejection of Enlightened Despotism.” French Historical Studies 6, no. 1 (1969): 31–58. https://doi.org/10.2307/286243. +
The Protestant Reformation of the sixteenth and seventeenth centuries sparked new discussions about mankind’s freedom of the conscience, belief, and to some extent, expression. Reformers from all over Europe produced writings on these freedoms, but they generally thought about these rights as they related to questions of theology. As a result, Reformation discourse focused more on a Christian’s freedom of conscience than on the citizen’s right to express their beliefs. The right to freedom of expression was explored, but much less broadly. English philosophers Thomas More and Thomas Wilson are two of the only Reformation-era thinkers to directly address the right, but their work influenced England’s political development regarding free speech over the next several centuries. Wilson’s support for the Reformation guided his views on the necessity of free expression, while More’s views were less religiously-motivated. More, who would eventually be martyred for his refusal to renounce Catholicism, made his most significant contribution to the English discourse on the right to free expression before the Anglican Reformation even began. In 1523, eleven years before English King Henry VIII announced a split from the Catholic Church, his newly-appointed Speaker of the House of Commons made a petition for freedom of speech within Parliament. The Speaker was none other than Sir Thomas More, who would later oppose Henry’s Anglican Reformation at the cost of his own life. He argued that Parliament could not be expected to form effective policy if its members were not allowed to speak honestly, saying that “it may therefore like your most abundant Grace, our most benign and godly King, to give to all your Commons here assembled your most gracious licence and pardon, freely, without doubt of your dreadful displeasure, every man to discharge his conscience, and boldly in everything incident among us to declare his advice, and whatsoever happen any man to say” (More, 1523). More’s insistence on the value of free speech within a legislative body is far removed from advancing the citizen’s right to freedom of expression, but it reveals that English Reformation-era thinkers were beginning to reconsider the permissibility of magisterial censorship as early as the 1520s. While More was ultimately executed for remaining loyal to the Catholic Church during the Anglican Reformation, his conviction that one ought to be able to speak their mind without fear of legal retribution endured.
About twenty years after More’s speech, Thomas Wilson made a similar statement about freedom of expression in his 1553 work, The Arte of Rhetorique. Wilson was an English writer whose Protestant views led Catholic Queen Mary I of England to summon him out of his mid-sixteenth century exile in Italy to stand trial for heresy, and his Protestant tendencies seem to have guided his thoughts on freedom and liberty. In an introduction to The Arte of Rhetorique, George Herbert Mair asserts that “there is no mistaking [Wilson’s] zeal for the Reformation. It shines through everything he wrote, and the reader of the Logike and the [Rhetorique] will have no cause to wonder at the papal persecution of his works” (Mair, 1908). Perhaps this avid support for the Reformation movement influenced his thoughts on freedom, not only of the conscience but also of speech itself. A passage from The Arte states that “Freeness of speech is when we speak boldly and without fear, even to the proudest of them, whatsoever we please or have list to speak. Diogenes, herein did excell..this world wants such as he was” (Wilson, 1553). Like More, Wilson understood the value of free speech. Though he does not speak in this passage of a citizen’s right to freedom of expression, he was at least aware of the potential benefits that this liberty could have within political society. In fact, according to a 1981 article in The Sixteenth Century Journal, Wilson advanced the discourse on freedom of speech by “claiming that freedom of speech is a generally acknowledged duty to be exercised by anyone, not restricted to parliamentary debate” (Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics”).
Both More and Wilson made important contributions to the Reformation-era discourse on freedom of expression, but neither would live to see England’s official legislation of the right to freedom of speech within Parliamentary debate. This only occurred after the Glorious Revolution, in which William, Prince of Orange and newly crowned King of England, signed the English Bill of Rights in 1689. The Bill reflected England’s newfound stability within the European religious community by declaring the country a “Protestant Kingdom” and forbidding any Catholic from taking the throne or marrying into the royal family (English Bill of Rights). It also became the first early-modern document to legislate freedom of expression when its text guaranteed “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (English Bill of Rights). The document went into effect near the end of the Anglican Reformation movement, over a century after Wilson’s death, so it is unclear to what extent he or More influenced its creation. While The Arte of Rhetorique w as known in academic circles, its call for freedom of speech was not fully answered by the Bill, which only guaranteed that right within Parliamentary debate. The Bill’s text more closely resembles More’s 1523 speech, which specifically refers to freedom of speech within Parliamentary debate. Scholarship has yet to establish a direct link between the Bill and either of the two documents, but it is nevertheless important to note the importance of both writers’ work in advancing English discourse on the right to freedom of expression.
REFERENCES:
Avalon Project - English Bill of Rights 1689, avalon.law.yale.edu/17th_century/england.asp.
More, Thomas. “Thomas More Petition for Free Speech, 1523.” The Center for Thomas More Studies, www.thomasmorestudies.org/docs/Thomas%20More%20Petition%20for%20Free%20Sp eech.pdf.
Parkin-Speer, Diane. “Freedom of Speech in Sixteenth Century English Rhetorics.” The Sixteenth Century Journal, vol. 12, no. 3, 1981, pp. 65–72. JSTOR.
Wilson, Thomas. “The Arte of Rhetorique, with ‘Introduction.’” Edited by George Herbert Mair, The Art of Rhetoric, Renascence Editions, www.luminarium.org/renascence-editions/arte/arte.htm.
In his First Discourse, Rousseau elaborates on the problems of moral inequality that he believes have arisen out of unrestricted expression by elites in art, science, and philosophy, determining that “the pernicious inequality created among men by the distinction of talents and the debasement of virtues” gives rise to humanity’s moral decay. Elite control over what information is deemed important in society “corrupts our judgment” and teaches children “everything but their duty” to their families and communities (The Essential Rousseau 1974, p. 222). At the end of the Discourse, Rousseau encourages readers to deny elite priorities in favor of an emphasis on local, communal, and individual needs:
“Let us not pursue a reputation which would escape us and which, in the present state of things, would never repay us for what it had cost us, even if we were all qualified to obtain it. Why should we seek our happiness in the opinion of our fellow men if we can find it in ourselves? Let us leave to others the task of instructing peoples in their duties, and limit ourselves to fulfilling our own; if we have that, we have all the knowledge we need” (p. 227).
Similarly, in The Social Contract, Rousseau offers a political system to address part of this problem, outlining that the institution of his ideal body politic depends upon the “complete surrender of each associate, with all his rights, to the political community” and the allocation of each person “and all his power...under the supreme control of the general will” (p. 17). While Rousseau posits that ensures equal political conditions for all and disincentivizes decisions that do not benefit the whole community, such a system also includes harsh restrictions on individual freedom of expression as it is conventionally understood today.
While Rousseau endorses open debate and dissent during the lawmaking process, censorship plays a prominent role in the enforcement of newly-created laws to more easily keep subjects content and make legislation better reflect the general will: “although the law does not regulate morals, it is legislation that gives birth to them…censorship can be useful for preserving morals, but never for restoring them” (p. 105). To Rousseau, the majoritarian nature of the sovereign “always tends toward the public good” and leaves little opportunity for dissent in the political process after laws have been passed (p. 26). The role of the “government” in Rousseau’s thought also imposes coercive restrictions on individual expression. In carrying out its responsibilities as an executive force, Rousseau believes that the government ought to compel individuals to abide by the decisions of the general will and suppress those who speak out against it–a responsibility Rousseau recognizes as vital to the continual existence of the sovereign (p. 52).
Censorship is also a prominent element of the responsibilities of Rousseau’s lawgiver, the societal first mover who ought to “concern himself” with the “morals, customs...and public opinion” of a people in secret to maintain social order (p. 47). While debate and dissent concerning religious speculation ought to be tolerated, the moral authority outlined by the lawgiver must go unquestioned, as “open dissent from these opinions can be understood as at best a declaration of independence from the community and at worst a declaration of war against it” (Kelly 1997, 1241).
Suppression of the minority opinion in Rousseauian society severely encroaches upon individual autonomy and the incentivization of censorship immediately following the legislative process further suppresses the ability for individual thought to exist outside of what is deemed legitimate by the legislative assembly.
References:
Rousseau, Jean-Jacques, and Lowell. Bair. The Essential Rousseau. New York: New American Library, 1983.
Kelly, Christopher. “Rousseau and the Case for (and Against) Censorship.” The Journal of politics 59, no. 4 (1997): 1232–1251.
At times, states have felt intimidated by different instances and types of expression.
Historical concerns about expression have been documented as far back as ancient Rome, where laws were put in place that made offenses against state leaders and the country in general a criminal act. Later, this legislation evolved to enact severe punishments on those who caused offense to the sovereign, whether through verbal or other attacks (“Lese Majesty”). In Medieval England, heretics - those that expressed sentiments and performed acts contrary to the Church of England and its teachings - were prosecuted and burned at the stake for threatening religious authority (Statutes of the Realm, 2:12S-28: 2 Henry IV). Centuries later in 1798, the US government made it illegal for any citizen to print, state, or distribute words about the government or its members that were considered to be spiteful and untrue by passing the Sedition Act. Those who were prosecuted for such crimes were largely Democratic-Republican Journalists, indicating that the ruling Federalist party passed the legislation to suppress opposition figures whose speech threatened their authority (“Alien and Sedition Acts ” 1798).
In the current era, studies evaluating freedom of expression suggest that the right continues to be viewed as a threat to many national governments. In fact, according to the 2023 Freedom in the World report, the number of countries that are classified as having the lowest possible score in terms of freedom of expression have doubled. Additionally, statistics show that 109 countries approved some sort of legislation that restricted this same right in the year 2022 (Gorokhovskaia, Shabaz, and Slipowitz 2023). In many cases, both recently and in the past, regimes of all types have justified limitations on the freedom of expression as actions meant to protect public interests in some way, shape, or form.
Governments may demonstrate that they feel threatened by free expression through police crackdowns or legal actions. As an example, in 2022 Iranian authorities began to violently crack down on citizens protesting the death of Mahsa Amini, a young woman who had perished at the hands of the country’s morality police. Demonstrations grew, with many opposing the Islamic republic’s policies, including mandatory veiling. As a result, authorities reacted by employing internet blackouts, arrests, imprisonments, and more (Ziabari 2023). President Ebrahim Raisi justified these repressive actions and threatened further crack down on dissidents, stating that they were opposing Iran’s “security and tranquility” (The Guardian 2022), making it necessary to curtail freedom of expression.
Fears that freedom of expression may compromise public security have also been demonstrated in countries such as the United States. A primary example is the Supreme Court case Brandenburg v. Ohio, decided in 1969. The proceeding was based around a Ku Klux Klan leader who had spoken at a rally for the organization, “advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” (Brandenburg v. Ohio 1968, 444-445), according to prosecutors. As a result of this reasoning, the plaintiff was convicted under the Ohio Criminal Syndicalism statute, a decision that was later appealed to the Supreme Court on the grounds that it violated freedom of speech and expression as defined by the 1st Amendment of the US Constitution. This piece of legislation was described by the court as a way to prevent the teaching “of the moral propriety or even moral necessity for a resort to force and violence” (Brandenburg v. Ohio 1968, 448), indicating that Ohio’s state government had produced the law due to concerns that certain types of expression could lead to public corruption or insurrection. Ultimately, the Supreme Court deemed the state’s Criminal Syndicalism statute unconstitutional, widening the scope of freedom of expression in the United States (Brandenburg v. Ohio 1968, 448-449).
The interests and values of a majority group often play a contentious role in governments’ feelings and responses to certain expressive acts. Offending a dominant religion, ethnicity, or other social group tends to be perceived as a threat to the government, which can be viewed in the 2005 case heard by the European Court of Human Rights (ECHR), İ.A. v. Turkey. The applicant, a citizen of Turkey who was referred to throughout the case as Mr. İ.A., owned and directed a publishing house which had released the novel “Yasak Tümceler”, which discussed various religious and philosophical issues. Turkish prosecutors deemed the book an offense to Islam and charged him with blasphemy against the nation’s dominant religion based on Article 175 of Turkey’s Criminal Code (İ.A. v. Turkey 2005, 1-2). As a result, Mr. İ.A. appealed to the ECHR, saying that his conviction infringed upon the right to freedom of expression as defined by Article 10 of the European Convention on Human Rights. For their part, the Turkish government insisted that “the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim” (İ.A. v. Turkey 2005, 4), and thus freedom of expression had to be limited. The ECHR eventually sided with the Turkish government, agreeing that “as paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane” (İ.A. v. Turkey 2005, 5). Given this reasoning, the court confirmed that the limitations authorities placed on the applicant’s freedom of expression were justified and a “pressing social need” (İ.A. v. Turkey 2005, 5-6). The Turkish government’s actions and legislation to protect the religious majority’s feelings from an expression that abused it, backed by the ECHR.
In some cases, freedom of expression can be viewed by the government as a threat to public morality. This justification for limiting the right can be viewed in another ECHR case, Handyside v. The United Kingdom, which, similar to İ.A. v. Turkey, was based around the publishing of a book. The applicant, Mr. Handyside, owned a publishing company that bought the British rights to a work titled The Little Red Schoolbook, aimed towards school-aged audiences and including a section that discussed sexual matters (Handyside v. The United Kingdom 1976, 3-6). After it was released in the UK, many complaints about the book’s contents were made, with authorities eventually convicting Handyside of possessing obscene books for publication for gain under the Obscene Publications Acts of 1959 and 1964 (Handyside v. The United Kingdom 1976, 5), as well as confiscated the copies found in his office. Mr. Handyside then appealed these convictions to the ECHR on the grounds that the United Kingdom’s actions violated his right to freedom of expression under Article 10 of the European Convention on Human Rights, and breached several other rights laid out in the same document (Handyside v. The United Kingdom 1976, 13). However, the British government argued that they were justified in their actions, explaining that the limitations on expression were “necessary in a democratic society… for the protection of… morals” (Handyside v. The United Kingdom 1976, 16). This sentiment was backed by the ECHR, which found “that the 1959/1964 Acts have an aim that is legitimate under Article 10 para. 2 (art. 10-2), namely, the protection of morals in a democratic society” (Handyside v. The United Kingdom 1976, 16).
References:
“Alien and Sedition Acts (1798)”. n.d. National Archives. Accessed June 7, 2023. https://www.archives.gov/milestone-documents/alien-and-sedition-acts#sedition
Gorokhovskaia, Yana, Adrian Shahbaz, and Amy Slipowitz. 2023. “Freedom in the World 2023: Marking 50 Years in the Struggle for Democracy.” Freedom House.
The Guardian. 2022. “Protests Spread in Iran as President Raisi vows to crack down.” September 29, 2022. https://www.theguardian.com/world/2022/sep/24/protests-spread-in-iran-as-president-raisi-vows-to-crack-down
Handyside v. The United Kingdom, Application No. 5493/72, ECtHR judgment of 7 December 1976. https://hudoc.echr.coe.int/eng?i=001-57499
İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 December 2005.
https://hudoc.echr.coe.int/eng?i=001-70113
“Lese Majesty.” The Columbia Electronic Encyclopedia, Columbia University Press, 2013, https://encyclopedia2.thefreedictionary.com/lese+majesty. Accessed 7 June 2023.
Parliament of the United Kingdom. Obscene Publications Act 1959. 7 & 8 Eliz. 2. c.66
https://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/section/1
Statutes of the Realm, 2:12S-28: 2 Henry IV
Supreme Court Of The United States. U.S. Reports: Brandenburg v. Ohio, 395 U.S. 444. 1968. Periodical. https://www.loc.gov/item/usrep395444/.
Ziabari, Kourosh. 2023. “Iranian Protests and the Crisis of Free Speech.” Arab Center Washington DC. February 23, 2023. https://arabcenterdc.org/resource/iranian-protests-and-the-crisis-of-free-speech/
Freedom of expression is recognized in many philosophical and moral traditions as a fundamental right. Communitarianism is described as “…the idea that human identities are largely shaped by different kinds of constitutive communities (or social relations) and that this conception of human nature should inform our moral and political judgments as well as policies and institutions.” (Bell 2024). The core idea argues that communities shape our judgements and that humans have an obligation to support the communities that shaped their judgements. Since the core idea of communitarianism is that the community comes before all else, this means that basic freedoms, including freedom of expression, must be balanced against the needs and values of the community. Community cohesion is paramount to communitarianism, and in certain communities, freedom of expression could undermine social order. Some forms of expression could prove harmful to the community, so this philosophy argues that those expressions should be censored (Bell 2024).
Freedom of expression was not recognized for much of history. Freedom of expression was seen in ancient Athens, but there were philosophers that disputed it. Plato wrote in Republic against freedom of expression. Republic is a theory for a perfect city, and Plato believed that some form of censorship would be needed. Plato doesn’t disagree with freedom of expression; he believes it is a valuable tool to be used by philosophers and just men.
References:
Bell, Daniel. “Communitarianism.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta and Uri Nodelman, Summer 2024. Metaphysics Research Lab, Stanford University, 2024. https://plato.stanford.edu/archives/sum2024/entries/communitarianism/.
Glaun, Dan. “Germany’s Laws on Antisemitic Hate Speech and Holocaust Denial.”. FRONTLINE (2021). https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/. +
When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter:
“These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)
All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton and Khaitan 1125, 2019).
One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.
In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom.
Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law.
Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States.
REFERENCES:
Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013)
Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/
The freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights.
In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017).
When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter:
“These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)
All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion.
The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015).
Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015).
The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights.
Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence.
Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Hollis-Brusky, Amanda, “The Supreme Court Closed the Door on LGBTQ Discrimination. But it Opened a Window.” Monkey Cage at The Washington Post. June 16, 2020.
Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.
Stephanie Russell-Kraft, The Clash Between Religious Freedom and Equality Law, John C. Danforth Center on Religion and Politics 2017 St. Louis.
Sapir, Gidon, and Daniel Statman. “Why Freedom of Religion Does Not Include Freedom from Religion.” Law and philosophy 24, no. 5 (2005): 467–508.
Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights.
Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights.
Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Explained by Donald and Howard, freedom of religion is upheld by all major human right treaties. Demonstrated by this, freedom of religion is prioritized within international human rights law. Article 18 of the Universal Declaration of Human Rights, Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human rights and Fundamental Freedoms all protect individuals’ freedom of religion, which includes “freedom of thought, conscience, and religion.” Present in each of these major treaties, freedom of religion is observed to be highly respected and prioritized by the United Nations.
Additionally, freedom of religion is enshrined in most constitutions, demonstrating its high status. For example, only 43 countries, 20% of all nations, assert a state religion in their constitutions, denying religious freedom. As the majority of countries do not uphold a state religion, they allow for degrees of religious freedom. Observed by this trend among the majority of countries, there is a general global consensus that freedom of religion is a highly regarded fundamental right.
REFERENCES:
Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London. +