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The early-modern rationalist tradition has its roots in the European Enlightenment movement of the seventeenth and eighteenth centuries. Though famous philosophers like Kant and Descartes came to define the era through their work on method and idealism, thinkers like Spinoza and Leibniz were also influential in their writings on metaphysics, religion, and political philosophy. Both thinkers’ works contributed to a developing discourse on the rights and duties of the sovereign within political society.
It is important to note that the early-modern definition of a “right” differs significantly from its modern meaning. Leibniz’s work, for example, was influential in his time because of his conviction that “right” implies an intrinsic moral permissibility in an actor to complete an action that does not negatively impact society. In an article entitled “The Grounds of Right and Obligation in Leibniz and Hobbes,” Christopher Johns explains that “for Leibniz right (jus) is a permissive power, that is, the power of doing whatever is consistent with public utility” (Johns, 2009). Ultimately, Leibniz is especially significant because his works of political philosophy are some of the first to assert that a sovereign’s “right” to do something does not necessarily imply moral justification. In his “Reflections on the Common Concept of Justice,” the German philosopher writes that “the error of those who have made justice depend upon power comes in part from their confusion of Right with law. Right cannot be unjust; this would be a contradiction. But law can be, for it is power which gives and maintains law; and if this power lacks wisdom or good will, it can give and maintain very bad laws” (Leibniz, 564). This idea that a sovereign is not justified in all of its actions clashes with that of earlier theorists like Thomas Hobbes, and both Leibniz and Spinoza use it to imply that the sovereign ought not to wield unmitigated power over its subjects. Leibniz asserts this idea as a general theory which can apply to religious freedom, though his near-contemporary Benedictus de Spinoza dealt more specifically with the issue.
While Spinoza also generally refrains from arguing against the sovereign’s right to do as it pleases, his writings do imply an understanding that a sovereign’s ability to dictate laws to its citizens is not entirely justified. In fact, his Theological-Political Treatise reveals his strong support for religious toleration. Spinoza’s exploration of the intersection between faith and sovereignty within this work leads him to first conclude that no sovereign entity can claim to rule a society simply by religious right. This is because humans are so prone to disagreement within religious discourse, meaning “the rights of the state would be dependent on every man’s judgment and passions” if sovereignty based its authority in divine right (Spinoza, 163). Through an analysis of the Biblical Hebrew state he further proposes that: “We may now clearly see from what I have said:— I. How hurtful to religion and the state is the concession to ministers of religion of any power of issuing decrees or transacting the business of government: how, on the contrary, far greater stability is afforded, if the said ministers are only allowed to give answers to questions duly put to them, and are, as a rule, obliged to preach and practise the received and accepted doctrines.” (Spinoza, 182)
In addition to laying out one of the earliest arguments in favor of the separation of church and state, this Spinoza passage lays the groundwork for his assertion that the state ought not to compel its citizens to follow any one religion. Near the end of his discourse he states that though the government may have the “right” (or at least, the ability) to dictate whatever terms it pleases to its subjects, “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, 195). Ultimately, both Spinoza asserts the impermissibility of a sovereign’s use of power to force belief or faith upon its subjects.
Taken together, writings from early-modern rationalists like Leibniz and Spinoza present interesting arguments about the rights of sovereign and citizen as they relate to religious freedom. Leibniz’s declaration that the sovereign’s laws are not necessarily just opens the door for a discussion about the permissibility of lawbreaking, while Spinoza’s conclusion that rulers err when they attempt to dictate religion to their citizens give philosophers license to question state-enforced religious homogeneity. Though neither philosopher states unequivocally that a citizen has an innate right to practice whatever religion they choose, both seem to have agreed that the state is not morally justified in all of its attempts to control certain aspects of its citizens’ lives. Leibniz argues this point very generally, while Spinoza speaks specifically to the dangers of religious influence over a sovereign within political society.
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.
Freedom of religion has been a pillar within the American culture from the very moment the Pilgrims landed in Plymouth. However, upholding this idea has been relatively controversial since people need a religion to explain their existence or explain why things do and do not happen. For feminist theorists, religion exists as part of the reason why the patriarchy rules over women, subjecting them to the unfair treatment that they experience in their day to day lives due to the values set forth. It is for this reason that most feminist theorists are conflicted when it comes to freedom of religion, especially since their conversation about religion surrounds the ways that Christianity disenfranchises women.
When it comes to religion, feminist theorists have the same consensus that religion reinforces the patriarchy within society and that religious freedom is important for the liberation of women. Martha Nussbaum said that “Thinking of this problem, then, we can insist that universal norms of religious toleration, freedom of association, and the other liberties are essential in order to prevent illiberal subgroups from threatening legitimate forms of pluralism” (Nussbaum 2000, 52). It is for this reason that Nussbaum believes that pluralism will free women since it will open the door for women to enter the conversation and input their ideas, but such inclusion only happens if the patriarchy is willing to embrace other ideas put forth. To the feminists this includes being plural about religious ideologies as well since if society is to accept other minority groups such as women, then all minority groups need to be allowed, including religious minorities. By giving all groups, religious or other, a setting for their voices to be heard, they eliminate the chance for a single group to rise above and dominate society by oppressing the other opposing groups. Furthermore, Charlotte Perkins Gilman noted that “It is the recognition of a new order of duties, a new scale of virtues; or rather it is the practical adoption of that order long since established by the facts of business, the science of government, and by all great religions. Our own religion in especial, the most progressive, the most social, gives no sanction whatever to our own archaic cult of home-worship" (Gilman 1904, 313). Gilman emphasis throughout her work is the importance of the home to the woman, as a place of oppression and as a place where women can fight the patriarchy by creating change within the home first. It is within the home that Gilman paints a picture for individual religious choice and expression because the home is completely private from society. However, she notes that society cannot be blind worshippers and therefore, a deeper understanding of Christianity needs to be explored within the different sects in order to liberate women and create the equality she describes. Gilman does paint a picture of religious freedom, accompanied by the idea that religion is a choice to be made by the individual in the best interest of the individual.
The feminist definition of freedom of religion follows alongside the idea that people, regardless of religion or gender, should be allowed to do as they please and live life in the manner they believe will satisfy their needs in life. It is for this reason that Nussbaum noted that, “Being able to use imagination and thought in connection with experiencing and producing self-expressive works and events of one’s own choice, religious, literary, musical, and so forth. Being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise. Being able to search for the ultimate meaning of life in one’s own way. Being able to have pleasurable experiences, and to avoid non-necessary pain” (Nussbaum 2000, 79). Nussbaum contributes the freedom of any religion in order to lay the groundwork for the idea that anyone should be able to do as they please regardless of their gender or their personal life choices. In this excerpt specifically she notes on the idea that people have the liberty to make their own life decisions and that they should therefore be tolerant of the decisions that others decide to make for themselves. She goes on to describe the type of relationship the government should have with religion within different countries, pointing out the problems of having a non-secular government. For this reason, proposes the solution of a secular government that imposes moral constraint and treats one another as ends. She recognizes that religion and the values of patriarchy are closely aligned and therefore religion and women’s rights are not compatible, yet she still embraces religion since as states before, she recognizes that religion is an important institution within society. Mary Wollstonecraft went as far to say that “Yes, virtue as well as religion, has been subjected to the decisions of taste” (Wollstonecraft 1891, 85). Wollstonecraft adds to this point that would within different religions, women have different rights and liberties and by embracing all religions, there is a possibility that women will be freed from the oppressive state they reside in. However, Wollstonecraft’s version of freedom of religion is the freedom to choose among the Christian denominations. Evidence of this is shown throughout her work as she disproves of atheism and Catholicism, yet is willing to embrace other Christian sects. Wollstonecraft’s idea of personal preference when it comes to religion is something that most feminists would agree with since as stated before women might have different freedoms within different religious sects. In Her discussion of religion, matters of the influence of the patriarchy and the hold men have on institutions prevails as she describes the manner in which men maintain control.
Aside from the literal and most common forms of religion people tend to think of, feminists like MacKinnon, Friedan, and Paglia introduce a new kind of religion that they want to address within their works. It is the way people hold one another to their gender roles that creates this new institution that people follow religiously, wielding the same faith and commitment religion gets. In its essence, these specific theorists name these oppressive gender roles as the new religion because of the way people religiously adhere to these gender roles and gender stereotypes that oppress women. In this definition of religion that most feminists attempt to address rather than the literal religions that people think of when it comes to defining the freedom of religion. In this case, feminist theorists advocate for the complete abolition of this religion since it is part of the aesthetics of society that keep women oppressed and does not give them the equality they are entitled to. Despite this alternative religion, feminist theorists advocate for a complete freedom of religion within society in order to address the inequalities women face in society.
References:
Gilman, Charlotte Perkins. The Home, Its Work and Influence, by Charlotte Perkins Gilman. England: William Heinemann, 1904, 1904.
Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge University Press
Wollstonecraft, Mary. A Vindication of the Rights of Woman with Strictures on Political and Moral Subjects. No place, unknown, or undetermined: Humboldt Publishing Co., 1891.
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 Religion/Philosophical Origins/Tradition contributions/Lockean Thought/English Empiricism +
In A Letter Concerning Toleration, Locke advocates for religious freedom, albeit with qualification. He claims that toleration is the “chief characteristic mark of the true Church” (Locke 1689, 3). Locke justifies toleration by arguing that religious controversies cannot be solved by human beings, and since no religion has an objective claim to truth over another (not just between Christian denominations, but between, in the example he uses, Muslims, Christians and Jews), all religions must be tolerated (Kessler 1985, 490-91).
However, Locke prioritizes following the law over free worship, condemning religiously motivated illegal acts (Kessler 493). The following passage from A Letter demonstrates Locke’s view that humanity cannot identify a true religion: “For every church is orthodox to itself; to others, erroneous or heretical. For whatsoever any church believes, it believes to be true and the contrary unto those things it pronounce; to be error. So that the controversy between these churches about the truth of their doctrines and the purity of their worship is on both sides equal; nor is there any judge, either at Constantinople or elsewhere upon earth, by whose sentence it can be determined” (13-14). Locke separates “speculative” and “practical” beliefs, the former of which applies merely to conscience, and the latter of which influences action. Locke argues that speculative beliefs should always be respected, but identifies certain practical beliefs that should not be (Locke 30-31). These include beliefs incompatible with morality, that induce disloyalty to the state, and atheism (Kessler 494). He condemns non-belief because, “Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist” (Locke 36). He also argues for a separation of church and state, claiming that peace and security are incompatible with “religion propagated by force of arms” (Locke 15). Though a devout Christian, he rejects the application of Biblical law to modern societies; ‘“Hear, O Israel,” sufficiently restrains the obligations of the law of Moses only to that people” (Locke 28). He is unambiguous and absolute on separation, stating that “church itself is absolutely separate and distinct from the commonwealth and civil affairs. The boundaries on both sides are fixed and immovable. He mixes heaven and earth together, things most remote and opposite, who confuses these two societies, which in their origin, their end, and their whole substance are utterly and completely different” (Locke 15).
Locke does not argue for religious freedom because it is a fundamental right, but rather as a means of maintaining a free society in general. He argued that state enforcement of religious doctrine could serve as an excuse for tyranny. Locke believed that the large number of churches in a free society would maintain that freedom because these churches would be too varied for one to subjugate others and because they could collectively rise up against a threat to their freedom (Kessler 502). Finally, Locke embraced a form of civil disobedience when the government oversteps its bounds in making laws that restrict religion. As Locke argues in A Letter, “If the law, indeed, be concerning things that lie not within the verge of the magistrate’s authority (as, for example, that the people, or any party amongst them, should be compelled to embrace a strange religion, and join in the worship and ceremonies of another Church), men are not in these cases obliged by that law, against their consciences” (33). The following passage from A Letter demonstrates Locke’s view on the benefits of religious freedom and pluralism: “Take away the partiality that is used towards them in matters of common right; change the laws, take away the penalties unto which they are subjected, and all things will immediately become safe and peaceable; nay, those that are averse to the religion of the magistrate will think themselves so much the more bound to maintain the peace of the commonwealth as their condition is better in that place than elsewhere; and all the several separate congregations, like so many guardians of the public peace, will watch one another, that nothing may be innovated or changed in the form of the government, because they can hope for nothing better than what they already enjoy—that is, an equal condition with their fellow-subjects under a just and moderate government” (38-9).
Locke describes churches in A Letter as “a society of members voluntarily uniting (Locke 9). He argues that churches should have the right to exclude members (12), and to create their own bylaws (10). Locke’s respect for association is not restricted to churches; A Letter advocates for no difference in governmental treatment between associations for philosophy, business, religion, or recreation (38). He states that, “Neighbourhood joins some and religion others. But there is only one thing which gathers people into seditious commotions, and that is oppression.”
REFERENCES:
Sanford Kessler, “John Locke's Legacy of Religious Freedom,” Polity 17:3, Spring 1985
Locke, Letter Concerning Toleration
Marx famously described religion as “the opiate of the masses.” Despite his personal rejection of religion, he was less keen on establishing an atheist society than many believe. First, Marx did not view religion as an evil in it of itself. Rather, he viewed religion as an unfortunate symptom of the prevailing social order whose overthrow he sought (Lobkowicz, 1964, 319-20). Lobkowicz argues that Marxist governments, unlike Marx himself, saw religion as “antirevolutionary,” preventing society from charting Marx’s course (323). In his “Critique of the Gotha Program,” Marx argues that “everyone should be able to attend his religious as well as his bodily needs without the police sticking their noses in” (1875).
References:
Lobkowicz, N. “Karl Marx's Attitude Toward Religion.” The Review of Politics 26, no. 3 (1964): 319–52. doi:10.1017/S0034670500005076. +
Upon the founding of Islam, Muslims saw human beings as divided into two distinct categories: "Muslims and infidels (kuffār)" (Crone 2004, 358). Furthermore, the world itself is also divided into two using the same distinction, "Muslims lived in dār al-Islām, the abode of Islam," while "infidels lived in dār al-kufr, the abode of unbelief, also known as dār al-Harb, the realm of war" (Crone 2004). This idea of believers and non-believers was taken very seriously by some sects of Islam, mainly the Khārijites. The Quran states that a non-believer can be "killed and/or enslaved, exposed to random slaughter, and robbed of their possessions" (Crone 2004, 386). Islam was a religion both born through and spread by the sword, or Jihad; therefore, non-believers deserved to be slaughtered because they did not submit themselves to God.
However, there eventually came into existence: "an intermediate category of dār al-ahd, the abode of the treaty" (Crone 2004, 359). As the Rashidun and Umayyad Caliphates spread their faith and demesne across the Middle East and North Africa, Muslims were outnumbered by practitioners of Christianity, Judaism, Zoroastrianism, and several other minor religions. This expected population disparity all over the eventual borders of the Caliphate led Muhammad to decree the existence of an intermediate realm. Due to the similarities between Islam, Judaism, Christianity, and Zoroastrianism, Muhammad decided that a pact or treaty could be made with these Ahl al-Kitāb or People of the Book. This treaty decided that the "kitābī's were eligible for dhimma, legal protections to match that of the Muslims themselves" this allowed these fellow believers in the one God to "live on a permanent basis in the Muslim world" and practice their religion as they pleased, as long as they "[recognized] Muslim sovereignty and [displayed] their position of inferiority by paying poll-tax (jizya)" (Crone 2004, 359). This allowed the cousins of Islam to live in their ancestral homes as long as they respected their new Islamic overlords.
Alfarabi, an influential 9th and 10th-century Islamic political philosopher, concluded in his work that "what is intended by… the human being is that he obtain happiness" (Butterworth 2015, 65). This happiness comes from accepting and learning about Muhammad's revelation in the mountains outside Mecca. In order to achieve this, humans must first receive the primary cognitions, or the first intelligible, given to them by the active intelligence (Butterworth 2015). Alfarabi says that for humans to submit to god, they first must learn the basic concepts of how the world works, and they will conclude that there is one God and that Muhammad brought the most complete revelation from Allah to the people. However, to achieve this revelation, humans must first be exposed to the evidence that proves these facts about Islam. Without these cognitions being presented to the people by god, people will be unable to achieve true happiness and submit to God. There could also be people who received all of the necessary evidence but just interpreted it differently from others; therefore, they will also not achieve true happiness (Butterworth 2015). These two examples could be allusions to Christians, Jews, and Zoroastrians, people of the book who do not accept (or have not received in full) the revelations of Muhammad, and the different branches of Islam: Sunni, Shia, Ibadi, and others. The way to unify these groups into a functioning city in which people can achieve their happiness which varies "in quantity and quality in accordance with the variation in [their]... civic actions," (Butterworth 2015, 71), such as attending the Friday prayer or paying the jizya, depending on who you are. Therefore, even the non-true believers will not be able to achieve the complete happiness of accepting the revelation for themselves; they can achieve a piece of the true happiness through participating in the obligations they have when living in the city of the true Islamic faithful.
The final reference Alfarabi makes to the idea of religious freedom is a parallel when talking about his “ideal city” to the three realms created by Muhammad. The three inhabitants being the two accepted citizens of the city and the threat to the city's security: the Grass, The Weeds, and The Beasts (Butterworth 2015, 76). The Grass represents the true believers for whom the city is for and where they are nurtured to achieve their true happiness. These are the inhabitants of dār al-Islām, the true believers. Next, The Weeds, while taking up space within the city and limiting the amount of grass that can grow, is still not dangerous and are actually a diverse population, something essential for any city to be natural and healthy. These are the inhabitants of dār al-ahd, the people of the book who have accepted part of the revelation but not the whole truth. Finally, there are The Beasts or "the people who are bestial by nature"; these people are "not citizens, nor do they have any civic associations at all" (Butterworth 2015). They may be "domesticated" like slaves or hunted and slaughtered freely like wild beasts. These people are the inhabitants of dār al-kufr, the pagans who refuse to accept any part of the revelation, making them dangerous and unnecessary for the Islamic world.
Avempace also discusses the ideas of The Weeds and their relationship to the perfect Platonic city. According to Avempace, a "perfect city is that [which] is free from Weeds" (Lerner 1963, 127). However, this perfect city is an impossible utopia where everyone gets along so well that there is no need for either a "doctor nor judge," where everyone does their job, fits in their class, and does not diverge from "the opinion of the citizens" (Lerner 1963). However, this society is impossible. Therefore, Avempace accepts that "The Weeds can… exist in the four ways of life" (Lerner 1963, 128). He does not seem happy about it, saying that the more the opinions of The Weeds differ from that of the true citizen, the more apt the name is. However, Avempace also seems to think that in an imperfect city where The Weeds, the doctors, and the judges all exist, good governance should still look out for these Weeds and assist them in achieving as much happiness as possible. However, this depends "on how far [their] insight takes [them] or on (a belief) that had seized [them]" (Lerner 1963). Whether these weeds have achieved a partial revelation through other prophets, or have understood Muhammad's revelation differently, all of the citizens within the city deserve to have their happiness preserved. He describes it as "medicine of the soul," deriving from an ancient Greek physician and philosopher, Galen, who prescribed astrology and alchemy to preserve the soul and its happiness. Still, for The Weeds to have their happiness considered, they must be at least similar to the citizens or The Grass and not differ too significantly, or else they may be seen as diseasing or disintegrating the city (Lerner 1963).
REFERENCES:
Butterworth, Charles E. 2015. Alfarabi: The Political Writings, Volume II. New York. Cornell University Press.
Crone, Patricia. 2004. God’s Rule: Government and Islam. United Kingdom. Edinburgh University Press Ltd.
Lerner, Ralph and Muhsin Mahdi. 1963. Medieval Political Philosophy. New York. The Free Press of Glencoe.
In On Liberty, Mill argued against any attempt to impose religion on another person:
“The notion that it is one man’s duty that another should be religious, was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them. Though the feeling which breaks out in the repeated attempts to stop railway travelling on Sunday, in the resistance to the opening of Museums, and the like, has not the cruelty of the old persecutors, the state of mind indicated by it is fundamentally the same” (Mill 1859, 84).
REFERENCES:
On Liberty: https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf +
According to Platonic thought, there is no freedom of religion, all men and women are required to worship the Greek gods. In ancient Hellenic city-states, gods dictate each city's laws, and usually, a specific god such as Zeus for the Cretans and Apollo for the Lacedaemonians are accredited with giving the founding kings their laws (Plato 2013). The gods are the origin of law and order in the Hellenic world, meaning that going against a city's laws will also be going against the "holy" laws created by the gods. In Plato's Laws, the three older men discussed the proper way to govern a city taking a whole book to discuss how to properly deal with the atheism some youth end up practicing due to their disconnection to the gods. They saw this as a grave issue that would bring down the natural order of the city. They said these evil men undermine "the city's greatest laws" (Plato 2013). Their solution was to give the youth music and stories when very young in order for them to be able to always look back upon the tales displaying the divinity of the gods (Plato 2013).
However, Plato knew how poorly many myths displayed the Greek gods. When creating his "city in speech," Plato discusses the dangers of poets, such as Homer, and their interpretations of the gods, specifically regarding the guardians of the city. Plato believes the city cannot run unless the gods and their stories are adequately depicted so the ordinary people can follow them; otherwise, there will be no justice and virtue. Specifically for the guardians, Plato wished for them to be raised fearing "slavery more than death," in order to do this he suggested that the poets be censored, deleting passages that make the afterlife sound like the worst possible place to end up (Plato 2004, 67). Plato wished for his Kallipolis to have not just the laws but the inner workings of the city’s citizens’ minds to be guided by the gods and their perfect divine image. This is also shown in Plato's Myth of Er, a story of a murdered soldier who returns from the dead to tell the common people what the afterlife is. This story is supposed to convince the citizens of the Kallipolis that the crimes committed by the Hellenes dictate an afterlife. However, Er recalls that while he was sitting in the judging room of the deceased that "the greater [punishments] for impiety or piety toward gods or parents" (Plato 2004, 321). This is meant to keep Greeks in line with worshiping the gods because it is a tale-telling of the fate of the impious to be eternal suffering in hades.
More evidence is given on how deeply the idea of strictly following religion affected the Greek states. In The Apology, Socrates was "tried for impiety" (Plato 2018, 29). Socrates was brought to trial and eventually sentenced to death on suspicion of going against the city's religion. The Apology shows how essential Greeks thought piety and religion were and how closely related the state religion and laws were.
REFERENCES:
Plato. 2004. The Republic. Translated by C. D. C. Reeve. Hackett Publishing Company, Inc. https://123philosophy.files.wordpress.com/2018/12/Plato-Republic.pdf
Plato. 2013. Laws. Translated by Benjamin Jowett. The Project Gutenberg EBook of Laws. https://www.gutenberg.org/files/1750/1750-h/1750-h.htm
Plato. 2018. The Apology. Translated by Benjamin Jowett. Indian River State College Libraries. https://irsc.libguides.com/worldlit/apology.
Freedoms of expression, religion, and conscience were not formally addressed in Reformation Christian thought, but discourse on rights and liberties relating to speech, press, and belief are apparent in Reformation thinkers’ writings and speeches. Leading figures in the Lutheran and Calvinist movements began to explore the permissibility of disagreement with Catholic dogma and the Pope himself. This usually arose, not from a discussion of rights and liberties, but rather from the idea that one ought not to be compelled to profess a faith in which they do not believe. The right to freedom of religion, often referred to as one’s “freedom of conscience” in early modern texts, is partially rooted in the writings of Martin Luther during the early decades of the Protestant Reformation. Luther’s “Open Letter to the Christian Nobility” provides the basis for the Lutheran doctrine of the “priesthood of all believers,” which explains that all Christians have the capacity to understand and interpret God’s messages without the need of ordained Church officials. In his “Letter” Luther writes that “all Christians are truly of the ‘spiritual estate,’ and there is among them no difference at all but that of office” (Luther, 1520). This idea that all Christians have the right to decide for themselves what to believe about their faith was important to the Reformation movement because it was used to justify the vast expansion of different religious denominations that formed over the next few centuries. If Christians were free to believe what they felt was true, then they would have no problem forming new religious communities based on various interpretations of sacred texts. Later in his life Luther would rein in the “priesthood of all believers” doctrine as various beliefs sprang up which he considered heretical, but the doctrine survived to influence subsequent thinkers’ ideas about religious freedom and the rights of believers. Luther further affected the discourse on religious freedom when he faced down the Catholic authorities against whom he had written in his “Letter.” He famously expressed an unwillingness to retract a heretical statement in the face of Catholic scrutiny at the Diet of Worms. The Diet was called in order to determine whether or not the German monk had broken Church law in the creation of his ninety-five theses, and it ultimately found Luther’s work heretical and asked him to revoke his statements. In response, Luther declared that, “if I were to revoke what I have written on that subject, what should I do but strengthen this [pope’s] tyranny, and open a wider door to so many and flagrant impieties? Bearing down all resistance with fresh fury, we should behold these proud men swell, foam, and rage more than ever!” (Luther, 1521) The idea that Luther could strengthen the pope’s unjust authority by revoking statements that he believed to be true imply his belief that in a just society, a person should be able to profess their beliefs without fear of punishment. While Luther’s speech did not propose any theory of inalienable liberty or right to freedom of belief, it did contribute to a discourse addressing the permissibility of religious restriction.
Interestingly, Luther’s disagreement with traditional church dogma also led some of his opponents to think about the utility of religious discourse between opposing viewpoints. In a famous exchange of ideas in a series of open letters, Northern Renaissance thinker Desiderius Erasmus engaged Luther in a debate on human free will. The contents of the debate did not themselves have much to do with the origins of the right to religious freedom, but Erasmus’ words in his opening letter imply that the Dutchman at least supported the free exchange of ideas among religious groups. When opening his letter Erasmus writes that “I do not consider Luther himself would be indignant if anybody should find occasion to differ from him, since he permits himself to call in question the decrees, not only of all the doctors of the Church, but of all the schools, councils, and popes” (Erasmus, 1524). This passage, which at first glance seems nothing more than a jab at Luther, takes on new meaning when Erasmus subsequently proposes that the two men “pursue the matter without recrimination, because this is more fitting for Christian men, and because in this way the truth, which is so often lost amid too much wrangling, may be more surely perceived” (Erasmus, 1524). By framing the debate as a mutually beneficial effort to find religious truth rather than a contest between opposing religious viewpoints, Erasmus implies a support for the free exchange of religious belief, if nothing else. His words do not betray any innate support for religious pluralism or toleration, but the appeal to debate as “the way to truth” nevertheless went on to influence subsequent scholars such as Locke and Voltaire, both of whom championed ideas of toleration and religious pluralism.
Three decades after Luther initially resisted the Church’s attempts to censor him, Theodore Beza began to explore ideas of rights and responsibilities as they relate to magistrates and subjects. Beza was a French theologian living in Geneva during the Reformation, and historians widely view him as the pseudo-successor to John Calvin. His work, On the Rights of Magistrates, explains his views on tyranny and a subject’s responsibility to resist it. While Beza’s work does not specifically mention a citizen’s right to freedom of religion it further advances the idea that a regime cannot justifiably restrict its citizens’ expression or belief. After explaining that magistrates should not be able to restrict citizens’ faith in Chapter Ten of Rights, Beza writes that “if [a magistrate] acts otherwise I declare that he is practicing manifest tyranny; and with due allowance for the observations made above, (his subjects) will be all the more free to oppose him as we are bound to set greater store and value by the salvation of our souls and the freedom of our conscience than by any other matters however desirable” (Beza, 1574). While this “opposition” according to one’s freedom of conscience does not specifically refer to a subject’s ability to practice religion against the ruler’s wishes, it does imply a certain level of basic freedom to express one’s beliefs in the face of tyranny. Like Luther, Beza saw Catholic dogma and papal absolutism as an expression of such tyranny, which both reformers felt a responsibility to resist.
Luther, Erasmus, and Beza all explored the idea that one might justifiably hold beliefs that conflict with religious authorities or regimes. While they certainly proposed this idea in the hopes of preserving their own doctrines and beliefs, their effort provided a base upon which subsequent thinkers could expand theories of free conscience and religious practice. This would not be integrated into the rhetoric of rights and liberties for another century or so, but these sources reveal that the modern right to freedom of religion can trace certain roots all the way back to Reformation Christianity.
References:
Beza, Theodore. Theodore Beza, On the Rights of the Magistrates. Edited by Patrick S. Poole. Translated by Henry-Louis Gonin, constitution.org/cmt/beza/magistrates.htm.
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.
Luther, Martin. Martin Luther’s Speech at the Imperial Diet in Worms (18 April 1521). San Jose State University, www.sjsu.edu/people/james.lindahl/courses/Hum1B/s3/Luther-Speech-Worms-1521.
Luther, Martin. An Open Letter to The Christian Nobility by Martin Luther (1483-1546).Translated by C. M. Jacobs, www.projectwittenberg.org/pub/resources/text/wittenberg/luther/web/nblty-03.html. “On the Freedom of the Will: A Diatribe or Discourse by Desiderius Erasmus of Rotterdam.”
Luther and Erasmus: Free Will and Salvation, by Martin Luther et al., Westminster Press, Philadelphia, pdfs.semanticscholar.org/4318/ff6f297d5fe96224fa4d89cd6fb3c9c0608b.pdf. Accessed 7 July 2020.
Freedom of Religion/Philosophical Origins/Tradition contributions/Roman Legal and Political Thought +
Maintaining order and power within the Roman Empire was a key aspect to the functions and elements within the roman legal and political spheres. Consequently, Roman legal and political thought has become very influential to modern law and legal systems. Those who posed a threat saw great consequences and persecution as the Romans highly valued loyalty to Rome. According to Cicero, “Rome’s power and success lay in the superiority of its religious system (Simón, 2022, 465).” Romans were notoriously open to foreign religious influence and mobility throughout the Republic (Orlin, 2008, 232). “Religion played a decisive role in the circulation of ancestral wisdom and construction of civic identity that was deeply embedded in the political culture of the Roman Republic, (Simón, 2022, 466).” The Edict of Augustus demonstrates how the early empire contributed to the continuation of this openness in stating; “Since the nation of the Jews… have been found grateful to the people of the Romans... it seems good to me and to my advisory council, that the Jews shall use their own customs in accordance with their ancestral law, just as they used to use them in the time of Hyrcanus, the high priest of their highest god; and that their sacred offerings shall be inviolable and shall be sent to Jerusalem and shall be paid to the financial officials of Jerusalem… But if anyone is detected stealing their sacred books or their sacred monies, either from a synagogue or from a mens' apartment, he shall be considered sacrilegious, and his property shall be brought into the public treasury of the Romans (Caesar Augustus, 1 BCE).” Simon Price discusses the importance of how cults represented themselves in relation to the Empire. “Some practices related explicitly to the Roman Empire in different ways; at least compatible with Roman order, dedications, sacrifices, and prayers being offered for the well-being of the emperor (Price, 2012, 16).” As supported by the Edict of Augustus, loyalty to Rome was essential, with foreign and ethnic cults such as Judaism being allowed in this context by exhibiting that loyalty. Other polytheistic religions were tolerated as Rome expanded, absorbing diversity into its borders. Foreign and ethnic cults became popular and could be traced beyond the religious boundaries of Rome, with adaptations in respect to Roman religions being critical to their survival. However, tolerance was not constant throughout history, and at some points, even foreign cults such as the Cult of Isis were subjected to restrictions and edicts from the senate or emperors. “Octavian encouraged the worship of Isis but on Roman terms: only outside the pomerium. Octavian thus achieved a double aim: accepting Egypt with the sphere of the Roman empire but also demarcating the boundary between Romans and non-Roman to recreate a clear sense of Roman identity (Orlin, 2008, 245).” This train of thought further supports the idea that religions were tolerated in relation to Roman identity through restrictions that supported order and fostered loyalty to the original bounds of Rome, commonly in respect to the religious boundary that defined the sacred city limits. Augustus, as the first emperor, wrote his edict and established the precedent of tolerance within the empire that would last among the first few emperors. Tiberius being his successor, is documented by Tacitus to heavily follow the precedent set by Augustus by publicly stating his dependence on Augustan policies, as noted throughout the books of Annals, exemplified in Annals 1.77.3-4 (Cowen, 2009, 180). Therefore tolerance did not change dramatically in the beginning, until it was under Tiberius that the crucifixion of Christ occurred. “Jesus had undergone the death penalty from the Romans under the reign of Tiberius, by the procurator Pontius Pilate (Tacitus, Annals 44:5)” However, Jesus was not sentenced to death for being Jewish or Christian, but for accusations against him claiming opposition of payment to Caesar, and incitement of anti-Rome sentiments (Blumell, 2003, 14). This is also described in Luke 23:2. Following the death of Jesus, “Pilate reported to Tiberius not only the trial and condemnation of Jesus but also subsequent events indicating his divinity…On the basis of this report, according to Tertullian, Tiberius proposed to the senate Christ's acceptance among the deities of the Roman pantheon and his admission to the cult of the Empire. It is a well-known fact that during the Republican period, the Senate had absolute authority on religious matters. The Senate, however, rejected Tiberius' proposal. The emperor, recognizing the judicial consequences for the Chris- tians of this negative decision of the senate, seemingly tried to neutralize its effects by "threatening wrath against all accusers of the Christians (Bacchiocchi, 1998,7).” The disconnect between the senate and Tiberius here shows the legal formalities necessary for establishing tolerance amongst shared powers, and the neutralization of the decision with Tiberius’ threats. Following the rule of Tiberius was Caligula who made no changes to the status of religious freedom at the time, yet his successor Claudius was accredited to reestablishing Tiberian tolerance with the Edict of Claudius on Jewish Rights. “it is right that also the Jews, who are in all the world under us, shall maintain their ancestral customs without hindrance and to them I now also command to use this my kindness rather reasonably and not to despise the religious rites of the other nations, but to observe their own laws. (Claudius, 41 CE).” Despite this Edict, it is under the rule of Claudius that a Jewish uprising occurred resulting in the expulsion of the Jews from Rome, signifying the beginning of the Jewish diaspora (Bacchiocchi, 1998, 13). Following Claudius is Emperor Nero, who changes the way Jews and Christians are perceived for centuries when he becomes the ‘First Persecutor’ of Christians (Blummell, 2003, 16). According to Tacitus Nero blamed Christians as a scapegoat for the fire that occurred during his rule in Rome; “nor all the modes of placating Heaven, could stifle scandal or dispel the belief that the fire had taken place by order. Therefore, to scotch the rumor, Nero substituted as culprits, and punished with the utmost refinements of cruelty, a class of men, loathed for their vices, whom the crowd styled Christians... First, then, the confessed members of the sect were arrested; next, on their disclosures, vast numbers were convicted, not so much on the count of arson as for hatred of the human race (Tacitus, Annals, 5:44:3-7).” Following the Rule of Nero, ten emperors would go on to permanently receive the title of “persecutor” through the records of ancient Christian writings and accounts from those such as Tacitus and Tertullian (Blummell, 2003, 4). Domitian, Trajan, Marcus Aurelius, Septimius Severus, Maximin, Decius, Valerian, Aurelian, and Diocletian would continue the persecution of Christians for the next two and half centuries until the Reign of Constantine finally allows for the religion again. Edicts and orders against the Christians took place throughout numerous rules, “Emperor Decius initiated and rigorously enforced an empire-wide persecution against the Christians commencing in 249 CE when he issued an imperial edict requiring all the inhabitants of the Roman Empire sacrifice to the gods Rome. As a result, Christians who refused to offer sacrifices were not only sought out, but they were either forced into exile or executed (Blumell, 2003, 5).” The Edict of Milan finally restored toleration for the Christians, issued by Emperor Constantine in 313, and ended the persecution of Christians. However, the acts and pursuits of punishing the Christians for centuries go back to the crucial principles of Roman political and legal thought that leadership felt necessary to maintain order; that being loyalty to Rome. Jesus and the monotheistic religions following him challenged that loyalty and security thus were perceived as a threat, therefore explaining the hostility and persecutions that took place to maintain loyalty and order as loyalty to the Roman Gods was considered loyalty to Rome. The different periods and leaderships of Rome demonstrated different levels of religious tolerance and to the extreme end, absolute intolerance. Regardless, it is an essential point to acknowledge that religion played a key part in Roman politics, survival, and identity, and for the most part, mobility and flexibility did occur with the integration of cults into the Roman religion.
References:
Bacchiocchi, Samuele. 1983. “ROME AND CHRISTIANITY UNTIL A.D. 62". Andrews University Press. Vol. 21, no. 1: 3–25. https://digitalcommons.andrews.edu/cgi/viewcontent.cgi?article=1626&context=auss.
Blumell, Lincoln. 2003. “ The Early Roman Emperors and The Christians: an Examination of Early Emperors Ascribed Position and Persecutors of the Christians" 1-134 https://prism.ucalgary.ca/server/api/core/bitstreams/0652a587-f013-4b79-ae37-21575e955086/content.
Cowan, Eleanor. 2009. “Tacitus, Tiberius and Augustus.” Classical Antiquity 28, no. 2 (October): 179–210. https://doi.org/10.1525/ca.2009.28.2.179.
Orlin, Eric M. 2002. “Foreign Cults in Republican Rome: Rethinking the Pomerial Rule.” Memoirs of the American Academy in Rome 47: 1. https://doi.org/10.2307/4238789.
Orlin, Eric M. 2008. “Octavian and Egyptian Cults: Redrawing the Boundaries of Romanness.” The American Journal of Philology 129, no. 2: 231–53. https://www.jstor.org/stable/27566703.
Price, Simon. 2012. “Religious Mobility in the Roman Empire.” The Journal of Roman Studies 102: 1–19. https://www.jstor.org/stable/41724963?searchText=&searchUri=&ab_segments=&searchKey=&refreqid=fastly-default%3A21e1cabaa214dd0985aef2480469d958&seq=1
Simón, Francisco. 2022. “Religion and Rituals in Republican Rome,” January (January), 455–69. https://doi.org/10.1002/9781119673675.ch33.
Tacitus. 98 AD. “The Annals” 1937 translation. Book 1-16. https://penelope.uchicago.edu/Thayer/E/Roman/Texts/Tacitus/home.html.
“Roman Sources on the Jews and Judaism, 1 BCE-110 CE.” n.d. Www.bu.edu. https://www.bu.edu/mzank/Jerusalem/tx/romansources.htm.
Rousseau’s works of political philosophy are among the first modern sources to discuss at length the rights of the citizen within political society. A contemporary of such thinkers as Voltaire and Locke, his work contributed to the growing Enlightenment movement of the eighteenth century. It is unsurprising, therefore, that Rousseau’s work conveys an air of skepticism about the importance and centrality of religion as a cornerstone for a successful society. Indeed, while his “Discourses on the Origin of Inequality” and The Social Contract certainly affirm the existence of a Supreme Being and even seem to advocate for the Christian faith at times, his discussions of rights and religion ultimately conclude that it is both unnecessary and even destructive for states to impose any belief upon their citizens.
One of Rousseau’s most important contributions to political theory is his description of the “Social Contract,” an arrangement by which various citizens agree to live in a community governed by the collective “Sovereign,” thereby giving up certain natural rights and liberties in exchange for civil rights and liberties. He writes that “What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses” (The Social Contract, 47). The Sovereign governs according to the General Will of the people, which is collectively determined by all citizens living together under the social contract. In Rousseau’s words, “the social compact sets up among the citizens an equality of such a kind, that they all bind themselves to observe the same conditions and should therefore all enjoy the same rights” (The Social Contract, 55). The equality of rights that the social contract creates among citizens is the basis of Rousseau’s belief in religious toleration. It implies that the community does not have the legitimate right to limit any citizen’s religious belief because as a citizen, a member of a minority religion would not wish to restrict religious freedom. Thus, the general will could never legislate against an individual’s religious beliefs.
Of course, there are a number of cases in which Rousseau more directly advocates for religious toleration within the ideal political society. Being native to Calvinist-dominated Geneva, it would have been easy for Rousseau to praise religious homogeneity as a republican virtue. He did not do so, however, because he did not view religion as a strong base for sustainable government. In The Social Contract he notes that while Christian states often grow to be very strong, “the sacred cult has always remained or again become independent of the Sovereign, and there has been no necessary link between it and the body of the State” (The Social Contract, 1 29). Rousseau even goes as far as to imply that Christianity is incompatible with the creation of a perfect state because it opens the state up to abuses from figures like Cromwell and Cateline, bad Christians who brought turmoil to their Christian states (The Social Contract, 1 32). In the end, he concludes that religion should be practiced freely, because “the dogmas of that religion concern the State and its members only so far as they have reference to morality and to the duties which he who professes them is bound to do to others. Each man may have, over and above, what opinions he pleases, without it being the Sovereign’s business to take cognisance of them” (The Social Contract, 133). His position becomes even more clear in his “Letter to Monsieur D’Alembert on the Theater,” in which he writes that “in general, I am the friend of every peaceful religion in which the Eternal Being is served according to the reason he gave us. When a man cannot believe what he finds absurd, it is not his fault; it is that of his reason” (“Letter,” 11). Simply put: because a person cannot be forced to believe any one religion, it is unreasonable for a state to refuse religious liberty to its citizens.
Rousseau’s toleration did have one limitation, however, which he shared with his pseudo-contemporary John Locke. Rousseau believed that the State ought not be able to dictate its citizens’ religions to them, but he did hold that all members of a political society should at least believe in a divine being of some kind. The Social Contract states that “it matters very much to the community that each citizen should have a religion,” because “that will make him love his duty” (133). Rousseau believed that good citizens must have some kind of religion to hold them accountable under the Social Contract. He advocates for the State to establish some basic moral code to which its citizens must abide, arguing that “while [the Sovereign] can compel no one to believe them, it can banish from the State whoever does not believe them—it can banish him, not for impiety, but as an anti-social being, incapable of truly loving the laws and justice, and of sacrificing, at need, his life to his duty.” (The Social Contract, 133). Even in this caveat, however, it is evident that Rousseau’s problem is not with atheism itself. His objection is to the inclusion of any citizen who cannot be trusted to look out for their fellows’ best interests within the context of the wider political society. As long as one is capable of this, he believes, the citizen should be free to practice whatever faith they desire.
References:
Rousseau, Jean-Jacques. The Collected Writings of Jean-Jacques Rousseau. Translated by Allan Bloom, Publ. for Dartmouth College by Univ. Press of New England, 2004, ia800705.us.archive.org/34/items/RousseauLetterToDAlembertPoliticsTheArtsAllanBloo m_201811/Rousseau%20-%20%27%27Letter%20to%20D%27Alembert%27%27%3B% 20Politics%20%26%20the%20Arts%20%5BAllan%20Bloom%5D.pdf.
Rousseau, Jean-Jacques, and G. D. H. Cole. The Social Contract; and Discourses. Dent, 1963, Online Library of Liberty,oll-resources.s3.amazonaws.com/titles/638/Rousseau_0132_EBk_v6.0.pdf.
Max Weber is best known for his work on sociology, economics, and religion in the late nineteenth and early twentieth centuries. While most of his work focused explicitly on the socio-economic dynamics that define post-industrial western capitalism, his work on religious influences within capitalist systems provides some insight into his thoughts on religious toleration and diversity. He does not write broadly of rights or freedoms within a political society, but his thoughts on religion in general seem to indicate a tacit support for basic religious toleration.
Weber’s The Protestant Ethic and the Spirit of Capitalism is one of his better-known works, in which he addresses the apparent advantages that Protestants enjoy within a capitalist system over members of various other Christian and non-Christian religious traditions. As in other works Weber seems to regard religious diversity within various nations as something of an inevitability, and as a result he does not address freedom of religion as a concept, much less as a right. However, one small passage in his introduction to The Protestant Ethic which implies that Weber held a deep personal respect for all the world’s religious sects. He stated that:
“The question of the relative value of the cultures which are compared here will not receive a single word. It is true that the path of human destiny cannot but appal him who surveys a section of it. But he will do well to keep his small personal commentary to himself, as one does at the sight of the sea or of the majestic mountains, unless he knows himself to be called and gifted to give them expression in artistic or prophetic form.” (Weber, 36) It is difficult to surmise what exactly Weber would have thought about essential rights and freedoms of the citizen because he never explicitly addresses them in his work. However, passages like this one seem to indicate that at the very least, he would not have approved of religious intolerance within a political society.
Another theme in Weber’s work which implies that he would at least oppose a society’s enforcement of religious homogeneity is his apparent ambivalence toward religious belief in general. His focus throughout The Protestant Ethic remains more on the social influences of various religious traditions, rather than the doctrines and dogmas of the faiths themselves. This becomes obvious when he writes that the capitalist system “no longer needs the support of any religious forces, and feels the attempts of religion to influence economic life, in so far as they can still be felt at all, to be as much an unjustified interference as its regulation by the State” (Weber, 62). Given the fact that Weber clearly did not view religious dogma as a necessary influence on post-industrial capitalist society, one might conclude that Weber would have viewed any attempt to limit religious freedom as an frivolous endeavour. At the very least, Weber might have been ambivalent toward religious homogeneity within political society, and therefore more likely to support religious freedom as a basic concept, if not a right.
References:
Weber, Max. The Protestant Ethic and the Spirit of Capitalism. Florence: Routledge, 1930.
While the degree to which people are allowed to express themselves religiously varies in different countries, the importance that religion has in people’s lives also varies grately. Over half the people in countries such as Bosnia-Herzegovina, Georgia, and Romania say that religion is very important in their lives. However, in countries like the Baltics, Scandinavia, and Western Europe, fewer than 1 in 5 people say that religion is important to them (How Religious Commitment Varies by Country Among People of all Ages).
Many people have different ways in which they express themselves religiously. A survey done by the Pew Research Center found that in Europe, “about four-in-ten adults in the average country surveyed say that they attend religious services at least weekly.” They go on to say that “Buddhists and Hindus do not observe weekly holy days, and weekly communal worship services are not necessarily a part of their religious traditions” and that “countries in sub-Saharan Africa with predominantly Christian or Muslim populations tend to have the world’s highest levels of regular worship attendance; in the average country in that region, 79% of adults say they attend services weekly.” Daily prayer is one way that people express themselves religiously: “fully 96% of Afghans and 87% of Iranians report praying daily, reflecting a global pattern of high levels of prayer in Muslim-majority countries” (How Religious Commitment Varies by Country Among People of all Ages). This relates to freedom of religion because people are able to choose the way they want to express themselcces in this manner. For example, some people may choose to attend religious services, while others don’t practice religion in that manner.
In a 2009 Gallup Survey, 65% of Americans said that religion was an important part of their daily lives. This is a significant contrast from other countries, with Spain being 49%, Canada at 42%, France at 30%, the United Kingdom at 27%, and Sweden at 17% (Religion in the United States).
Among Americans, their choice to identify with religion varies greatly. 29% of Americans think that they’re a part of a minority group because of their religious beliefs and 70.6% of Americans affiliate with Christianity (Religion’s Role in Public Life). While some people may feel they’re a part of a minority group, the United States is less restrictive in regards to people’s ability to practice their religion than other countries. According to the Pew Research Center, “government restrictions on religion in the U.S. are nowhere near as extensive as those of countries such as China, Iran and Burma. Likewise, the U.S. has much lower levels of social hostilities to religion than countries like India, Pakistan and Nigeria” (Henne, 2015). One example of the religious restrictions in China is that “Christians are allowed to worship in ‘official churches’ registered with supervisory government agencies responsible for Protestantism and Catholicism” (10 Things to Know about China’s Policies on Religion).
“3. How Religious Commitment Varies by Country among People of All Ages.” 2018. Pew Research Center’s Religion & Public Life Project. June 13, 2018. https://www.pewresearch.org/religion/2018/06/13/how-religious-commitment-varies-by-country-among-people-of-all-ages/.
“Religion in the United States.” Pressbooks.howardcc.edu, April https://pressbooks.howardcc.edu/soci101/chapter/17-5-religion-in-the-united-states/.
Center, Pew Research. 2024. “1. Religion’s Role in Public Life.” Pew Research Center’s Religion & Public Life Project. March 15, 2024. https://www.pewresearch.org/religion/2024/03/15/religions-role-in-public-life/.
Henne, Peter. n.d. “How the U.S. Compares with the Rest of the World on Religious Restrictions.” Pew Research Center. https://www.pewresearch.org/short-reads/2015/03/25/how-the-u-s-compares-with-the-rest-of-the-world-on-religious-restrictions/.
Pew Research Center. 2023. “10 Things to Know about China’s Policies on Religion.” Pew Research Center. October 23, 2023. https://www.pewresearch.org/short-reads/2023/10/23/10-things-to-know-about-chinas-policies-on-religion/.
Government authorities have often viewed freedom of religion as a threat.
In the modern era, it is generally agreed that all people should be able to practice religion freely, as the liberty is enshrined in Article 18 of the Universal Declaration of Human Rights. However, governments continue to restrict certain aspects of the right if they find it to be intimidating. In many cases, legislation has pointed to a government feeling uneasy about aspects of religious freedom; in France for example, the legislature passed Act No. 2010-1192, which banned face coverings in public places. According to writer Heraa Hashmi, this targeted Muslim women who wore the niqab or burqa in an attempt to protect public order and to ensure others’ rights and freedoms,” (Hashmi 2022) pointing to the government’s concerns about religious expression. In other cases, simply refusing to protect religious rights, or doing so in an extremely selective manner, can indicate that a government authority is threatened by a certain faith and/or its expression. According to the US Embassy in Saudi Arabia, the country’s laws contain “no legal recognition or protection of freedom of religion” (US Embassy to Saudi Arabia 2021). However, blasphemy of Islam has been criminalized, and the Basic Law states that “the duty of every citizen is to defend Islam,” (US Embassy to Saudi Arabia 2021). In addition, scholars have argued that “where [Crown Prince Mohammed bin Salman] has truncated the power of the religious establishment, it is to consolidate power into the central state and specifically, to boost his own control” (Hoffman 2022). On top of that, there is “a comprehensive effort by the state to eliminate all independent or dissenting religious voices capable of challenging MbS’s desired monopoly on Islam in Saudi Arabia” (Hoffman 2022). This would indicate that Saudi leadership is heavily connected to Sunni Islam, and therefore the existence of other religions is viewed as a threat.
In some cases, states may see freedom of religion as a threat due to negative impacts on public health. In California, the state legislature passed Senate Bill No. 277, which eliminated exceptions to mandatory vaccinations based on personal beliefs. This decision was made based on the findings of a government report which had shown that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease” (Brown v. Smith 2018, 5) leading to difficulty controlling the spread of contagious viruses. While it is worth noting that the idea of “personal belief exemptions” are not exclusively related to religion, and thus the elimination of such exemptions are not specifically targeting faiths, some California parents understood this law as a restriction on their religious freedoms due the the fact that they “describe themselves as Christians” who were therefore “opposed to the use of fetal cells in vaccine” (Brown v. Smith 2018, 11). Other parents saw the law as suppression of their “sincerely held philosophic [and] conscientious…beliefs” (Brown v. Smith 2018, 6), and allied with those opposing the Bill based on their faith, eventually taking their complaints to the California Court of Appeals. While the coalition of parents eventually won the case, it was not based on violations of religious freedom. The Court quoted previous case law discussing faith and health such as Prince v. Massachusetts, which explained that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death” (Brown v, Smith 2018, 11). This indicates that freedom of religion is not all-encompassing in the United States; there are limitations. As a result, if a group such as the plaintiffs in Brown v. Smith refuses to comply with laws such as Senate Bill No. 277, they are threatening the interests of the state to protect public health and safety.
Governments have also felt threatened by religious freedom when it is perceived as hazardous to public safety and or morality. In Iran, state authorities have restricted the rights of the Baha’i faith group, as well as other religious minorities, for these reasons. According to reports from the US State Department, in 2022 many such individuals were systematically jailed and accused of having membership in organizations that “disrupt national security,” or “agitating the public consciousness” (US Department of State 2022, 22). Independent media outlet Iranwire has also reported that several Baha’i preschool teachers were detained by Iranian intelligence officers and accused of being spies, a charge that has been leveled against members of the faith for years (Sabeti 2022). According to the news outlet Reuters, Iranian authorities have also been carrying out “propaganda missions to propagate Baha’i teachings” and “infiltrat[ing] various levels of the education sector” (Reuters 2022). Members of the faith are punished and restricted from religious expression because the government feels that they threaten national security and disseminate incorrect teachings.
Government obligations to protect a state’s majority religion have also caused regimes to see the practice of minority faiths as a threat. In Sri Lanka, the constitution states that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e)” (Constitution of Sri Lanka 1978, art. 9), which include the freedom of conscience, religion, and thought, as well as “the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching” (Constitution of Sri Lanka 1978, art. 14(1)(e)). In practice, this has meant that the government has limited the actions of religious minorities. For example, in 2003 a Roman Catholic Order submitted a request to incorporate to the government of Sri Lanka, which was enacted by passing it into law. This bill allowed the Order to “to spread knowledge of the Catholic religion” and “to impart religious, educational and vocational training to youth,” (UNCHR 2004, 4). However, a private citizen claimed that this statute was unconstitutional given that it allowed the Order to proselytize and did not sufficiently protect Buddhism. The case was eventually taken to the Sri Lankan Supreme Court, which sided with the objector and stated that “the propagation and spreading Christianity as postulated in terms of clause 3 [of the Bill] would not be permissible as it would impair the very existence of Buddhism or the Buddha Sasana” (UNCHR 2004, 5). The judicial body thus limited the ability of Catholics to express their faith and proselytize in order to protect the majority religion; however, the United Nations Human Rights Committee objected to this reasoning in Sister Immaculate Joseph v. Sri Lanka, claiming that it violated the Optional Protocol to the International Covenant on Civil and Political Rights (UNCHR 2004, 11).
References
Brown v. Smith (2018) 24 Cal. App. 5th 1135. https://law.justia.com/cases/california/court-of-appeal/2018/b279936.html
Constitution of Sri Lanka (Rev. 2015), 1978. Art. 9. https://www.parliament.lk/files/pdf/constitution.pdf
Hashmi, Heraa. 2022. “Niqab and the Religious Freedom Violations in France.” UC Davis Journal of International Law and Policy. March 9, 2022. https://jilp.law.ucdavis.edu/blog/posts/niqab-and-the-religious-freedom-violation-in-france.html#:~:text=In%202010%2C%20France%20passed%20a,particularly%20impactful%20for%20many%20people.
Hoffman, Jon. 2022. “The Evolving Relationship Between Religion and Politics in Saudi Arabia.” Arab Center Washington D.C. April 20, 2022. https://arabcenterdc.org/resource/the-evolving-relationship-between-religion-and-politics-in-saudi-arabia/
Reuters. 2022. “Iran arrested Baha’i citizens, accuses them of Israel links - state media.” August 1, 2022. https://www.reuters.com/world/middle-east/iran-arrested-bahai-citizens-accuses-them-israel-links-state-media-2022-08-01/
Sabeti, Kian. 2022. “Baha’is Arrested for Instigating ‘Sedition’ and Protests.” Iranwire. October 18, 2022. https://iranwire.com/en/politics/108702-bahais-arrested-for-instigating-sedition-and-protests/
UNHRC, Communication No. 1249/2004, Sister Immaculate Joseph v. Sri Lanka, UN Doc CCPR/C/85/D/1249/2004
United States Department of State. 2022. 2022 Report on International Religious Freedom: Iran. https://www.state.gov/reports/2022-report-on-international-religious-freedom/iran/#:~:text=Since%201999%2C%20Iran%20has%20been,redesignated%20Iran%20as%20a%20CPC.
US Embassy in Saudi Arabia. 2022. 2022 Report on International Religious Freedom for Saudi Arabia. https://sa.usembassy.gov/2022-report-on-international-religious-freedom-for-saudi-arabia/#:~:text=Since%202004%2C%20Saudi%20Arabia%20has,severe%20violations%20of%20religious%20freedom.
Article 18 of the Universal Declaration of Human Rights (1948) protects an individual’s right to freedom of thought, conscience, and religion. The classification of freedom of religion as a fundamental right is to allow public choice of worship and to ensure protection from persecution on religious grounds and from conformity to a cultural majority through government influence. A state authority cannot interfere with how one chooses to worship or practice their religion, or whether one chooses if they worship at all. However, there is a philosophical and moral tradition of state secularism that challenges the classification of this freedom.
From a secular state perspective, a state with separation between religious institutions and law making bodies or governance powers, is intended to offer a neutral standpoint on the matter of religion. The institutional order separates church and state, in order to prevent religious powers from advancing their interests with the use of political influence, and to keep political duties prioritized over religious obligations. “In a secular state, the protection of freedom of conscience and the equal treatment of people in religious matters does require restrictions on religious freedom in official spaces (Castro, 2021)” This perspective puts into question how fundamental religious freedom really is in practice compared to the freedom of conscience, whether in a public or private manner.
Hobbes suggests that rather than separation of church and state, the subordination of church to the state for the sake of survival through unity is well within the authority of the state (Curley, 2015, 2). Unity through a common religion would then in theory benefit the survival of the state. In Leviathan, Hobbes discusses the Rights of Sovereigns by Institutions, articulating how the sovereign is judge of what is necessary for the peace and defense of its subjects, including the judgment of what doctrines are fit to be taught by them (Hobbes, 1651, XVIII). In his analysis, Edwin Curley discusses the extent to Hobbsian theory where he believes this repression is just so far it does not exceed its limits. “Repression of thought and expression beyond what is necessary for political purposes is not only an abrogation of the sovereign's duty, it is counter-productive, provoking bitterness and resentment, and undermining the loyalty of his subjects (Curley, 2015, 3). While there is still the right to private conscience, as long as one adheres to the doctrines of the state publicly, based on the previous argument, Hobbes advocates for the private beliefs of whatever one chooses, as long as it does not affect the actions of an individual as a subject to the sovereign state. “Hobbesian theory states that laws bind actions; people are thus free to do whatever they like as long as this doing stays in their thoughts (Tralau, 2011, 67).” This restriction on free practice, public or private, and the individual classifications of religious liberty and liberty of conscience, declassify freedom of religion as a fundamental right completely, but still includes freedom of conscience as acceptable under the limit that it still does not threaten the state.
According to this theory by Hobbes, Freedom of conscience is the only guaranteed element of this freedom, truly classified as a fundamental right, in order to avoid disparity and conflict within the body of state subjects. While Hobbes advocated for absolute state authority, removing religious freedom from the state completely, the secular state allows religious liberty but only to an extent. In both a Hobbesian state and a secular state, freedom of conscience can only truly be protected as a fundamental right, to ensure true neutrality or stability. Freedom of conscience and religion combat one another in each of these perspectives, thus disputing the classification of freedom of religion in the philosophical tradition of a Hobbesian state, or a moral tradition of state secularism and neutrality.
Castro, Faviola Rivera. 2021. “Rawls’ Critique of the Secular State.” IDEES. December 17, 2021. https://revistaidees.cat/en/rawls-critique-of-the-secular-state/.
Curley, Edwin. 2015. “Hobbes and the Cause of Religious Toleration.” https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf.
Hobbes, Thomas. April 1651. Leviathan. “The Project Gutenberg EBook of Leviathan, by Thomas Hobbes.” n.d. Www.gutenberg.org. https://www.gutenberg.org/files/3207/3207-h/3207-h.htm#link2H_4_0215.
Tralau, Johan. 2011. “Hobbes Contra Liberty of Conscience.” Political Theory 39, no. 1: 58–84. https://www.jstor.org/stable/23036034?seq=14.
The right to free expression is a notion central to the philosophy of Immanuel Kant. In his eyes, the unrestricted, public articulation of one's ideas is of vital importance: it is a prerequisite for humanity to realize its social and political ends. At the outset, we must be careful not to assume that Kant shares in our modern, liberal conception of this right. We must also refrain from implying a unified interpretation of this freedom among nations where it is constitutionally codified. This would be empirically false: the form and scope of free expression varies widely across liberal democracies. However, a general account might be gleaned by examining the definitions given by well-established international human rights organizations. Article 19 of the United Nation's Universal Declaration of Human Rights states: "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" (UDHR, 1946). Generally put, freedom of expression is the right to publicly voice one's opinions, especially critical ones, without state interference. There are several exceptions to this principle, including public expression that incites violence, threatens national security, promotes indecency, is libelous, or constitutes hate speech. These restrictions arise from a practical tension between the necessity of free expression and the dangers it poses to society and the state. Kant's view on freedom of expression is no exception. His arguments balance the rational need for guaranteed free expression with our duty to respect the will of civil authorities.
Kant's treatment of the freedom of expression is inextricably linked to the project of the European Enlightenment. In his essay "An Answer to the Question: What is Enlightenment?," Kant describes the titular epoch, defining it by its motto of "Sapere Aude! Have the courage to use your own understanding” (Kant 1784, 1). The era of Enlightenment constituted an awakening from Europe’s long-held state of "immaturity," in which institutional dogmatism monopolized public thought (Kant 1784, 1). Individuals had historically put their faith in public institutions and authorities, whether political, religious, medical, academic, or otherwise, to shape their beliefs and way of life (Kant 1784, 1). Enlightenment was the end of such dependency; it was the process of learning to use one's own reason or to think for oneself. To Kant, this promulgation of critical thinking was necessary for humanity's social and political progress; without it, humankind threatened to become ideologically stagnant. Kant claims that the sole condition for this awakening is the freedom of expression. In his own words: "nothing is required for this enlightenment, however, except freedom; and the freedom in question is the least harmful of all, namely, the freedom to use reason publicly in all matters" (Kant 1784, 2). Overcoming blind dogmatism demanded that people voice their ideas without legal restriction (Kant 1784, 2). Without this protection, the light of reason could neither spread nor become practically meaningful, as critical thinking only benefits society if it can be publicly communicated. This view constitutes Kant's general conception of freedom of expression, the right to express one's opinion publicly.
However, Kant distinguishes two forms of expression to address the tension between public criticism and civil obedience. Kant is a staunch defender of public reason, but he defines this concept narrowly. Public reason is the "use that anyone as a scholar makes of reason before the entire literate world" (Kant 1784, 2). This contrasts with the "private use of reason," by which Kant means acts of intellectual dissent within a civic bureaucracy, a form of expression he forbids (Kant 1784, 2). For instance, police officers are obligated to enforce laws even if they agree with them, with the only alternative being resignation (Kant 1784, 3). They may criticize the legal system outside their post but must faithfully perform their roles when 'on the job.' Kant argues that for civic institutions to effectively achieve their intended ends (i.e., to preserve the commonwealth, protect rights, and promote collective happiness in accordance with personal freedom), they must not be obstructed by those appointed to operate them (Kant 1784, 3). Qua citizen, critique is healthy and necessary, but qua official, censure both practically obstructs and formally contradicts the very notion of a political appointment (Kant 1784, 3). We see here that freedom of expression has an inherent potential for conflict with public authority, one which Kant hopes to solve by differentiating public and private reason.
Kant takes this concern further by describing the ideal relationship of the sovereign to free expression. To him, a good ruler neither represses discourse nor caves to public opposition. Instead, they follow the policy: "argue as much as you like, but obey!" (Kant 1784, 2). Public reason allows citizens to voice criticisms of a regime, which is essential for a monarch to bring his rule in line with civil freedom and the public good (Kant 1784, 2). However, this does not justify recalcitrant resistance to the government. In his essay “Theory and Practice,” Kant argues that subjects should only exercise the "freedom of the pen… within the limits of esteem and love for the constitution," meaning their criticisms should proceed with respect for both the public good and the sovereign's authority in mind (Kant 1793, 302). In-kind, a ruler must listen to the voice of his subjects but never cede his own interpretation of justice to theirs (unless their appeals convince him) (Kant 1793, 302). The sovereign is a trustee and not a delegate of the people. Even when he errs, obstruction and rebellion are never justified, only the exercise of public reason.
The degree of overlap between Kantian and contemporary conceptions of freedom of expression is difficult to parse. Because Kant never specifically treats freedom of expression vis-a-vis speech, the press, peaceful assembly, petition, and association, we need to extrapolate from his larger argument to infer his views on the matter. Because he expresses no specific restrictions on the mode of expression, freedom of speech, peaceful assembly, press, association, and petition appear permissible as long as they are peaceful and lawful. But other forms of expression less universally accepted as a right, such as conscientious objection, are a more complicated matter. As we have seen, Kant suggests that if a civic worker's duties conflict with his ethical obligations, he must resign. But in the case of conscription, there is no such option: one serves or faces the penalty, creating a conflict between one's political and ethical obligations. Moreover, Kant does not directly discuss the typical restrictions of 'public reason,' when it constitutes a danger to individual safety or national security. Because our modern understanding of these rights is the product of two centuries of evolving political thought, it may be useless to judge precisely what Kant would say of them. But regardless, there is still something to be gained in this comparison. By examining Kant's discussion of "public reason," we can clarify the foundational motivations and conflicts that inform debates surrounding this freedom today: the right to free expression is essential for societal flourishing, yet this must be balanced with the social and political consequences it presents in its extreme forms.
References:
Kant, I., & Wood, A. (1996). On the common saying: That may be correct in theory, but it is of no use in practice (1793). In M. Gregor (Ed.), Practical Philosophy (The Cambridge Edition of the Works of Immanuel Kant, pp. 273-310). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511813306.011
Kant, I., & Wood, A. (1996). An answer to the question: What is enlightenment? (1784). In M. Gregor (Ed.), Practical Philosophy (The Cambridge Edition of the Works of Immanuel Kant, pp. 11-22). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511813306.005
United Nations. (1948). Universal Declaration of Human Rights.
The first right that is critical to the exercise of freedom of the press is the right to free speech and expression. The Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations [[Probable year:: 1948]]) . Without the right to free speech and expression, the press would be very limited. This leads to another right which is critical to the exercise of freedom of the press which is the right to criticize the government. Before the American Revolution, the government did not allow freedom of the press because they were fearful of the spread of unfavorable information. The first American newspaper was published in Boston in [[Probable year:: 1690]] called, Publick Occurrences, Both Foreign and Domestick. The British government banned this publication because it was critical (Kahane [[Probable year:: 1976]], 203). Years later in [[Probable year:: 1773]], Hamilton helped to establish the principle that libel could not be punished unless it was false information. This meant that critiques of the government could be published, so long as that information was true (Kahane [[Probable year:: 1976]], 205). Hence, the ability to criticize the government became recognized as necessary for the realization of freedom of the press.
A similar principle was later upheld within the case of New York Times Company vs. Sullivan in [[Probable year:: 1964]] (New York Times Company v. Sullivan). In [[Probable year:: 1960]], the New York Times printed a newspaper with a civil-rights fundraising editorial advertisement titled, “Heed Their Rising Voices.” The advertisement was opposed to the way Alabama law enforcement had treated Rev. Martin Luther King Jr.. L.B. Sullivan filed a lawsuit against the New York Times on the basis that there were mistakes in the newspaper that called his reputation into question because he was a supervisor of the Alabama local police. Originally, a jury awarded him $500,000 in damages. However, the Supreme Court later reversed this decision and dismissed the damage award. The Court established the “actual malice” test which made it so public officials could only receive damages against libel in cases where the libel was stated “with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Company v. Sullivan). In the case of New York Times Company vs. Sullivan, the publication did not meet the standards of the actual malice test. According to Justice William J. Brennan Jr. and the majority, “debate on public issues should be uninhibited, robust and wide-open” (New York Times Company v. Sullivan). The majority implied that mistakes within publication would happen within any democratic society, and that debate and criticism of government affairs would be necessary for a truly free press.
Another right that is critical to the exercise of freedom of the press is the right of the public to receive information. Between [[Probable year:: 1964]] and [[Probable year:: 1968]], the modern conception of freedom of the press changed. Free press began to not only mean the ability to publish as one pleases, but also that citizens have a right to receive information about the government in order to promote democracy. This would act as a check on the power of officials. With this, the extent to which freedom of the press could be protected expanded (Coyle [[Probable year:: 2017]]) . In [[Probable year:: 1996]], the Federal Freedom of Information Act granted citizens the right to access many federal records. There are exceptions and limitations to this access, such as for privacy concerns, but in general, the right to know is upheld (Emerson [[Probable year:: 1979]], 351).
References:
Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360
Kahane, Dennis S. “Colonial Origins of Our Free Press.” American Bar Association journal 62, no. 2 (1976): 202–206.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964): https://www.oyez.org/cases/1963/39
A fundamental right that tends to conflict with freedom of the press is the right to privacy, which includes the protection of reputation. Two common conflicts between freedom of the press and the right to privacy are that between the right to publish and privacy and that between the right of the press to obtain information and the right to privacy. Beginning with the conflict between the right to publish and privacy, the issues concern the disclosure of embarrassing factual information about a person and the publishing of information that falsely displays a person to the public (Emerson [[Probable year:: 1979]], 332). Historically, in cases where privacy law is applicable, the courts have tended to balance the importance of the publication for news purposes with the extent of the invasion of privacy. For instance, if the publication is not thought to be newsworthy or necessary, but most people would view it as offensive, the court would allow a claim to privacy. Although, the same claim to privacy may not stand in a case in which the publication is considered newsworthy. Similarly, in defamation cases, courts consider the extent to which reputation is harmed, and therefore courts may be more likely to protect the reputation of a public figure over that of someone more private (Emerson [[Probable year:: 1979]], 333).
A specific case involving the conflict between the right to publish and privacy is Time Inc. v. Hill which took place in [[Probable year:: 1967]] (Time, Inc. v. Hill [[Probable year:: 1967]]) . Hill and his family were held hostage in their home in [[Probable year:: 1952]], and upon being released unharmed, they moved homes and requested limited publicity about what took place. Later, a novel came out about a similar situation which was also made into a play. Life magazine published an article about the play suggesting that it was a depiction of what happened to Hill’s family, even though the play reflected various incidents. The family sued for damages on the grounds that Life had knowingly presented false information about the Hill incident. Life suggested that the article was of public interest and was not published with malicious intent. The court determined that the Life article was not intended to be a source of news, but was rather distributed for advertising purposes. Subsequently, the family received compensatory damages (Time, Inc. v. Hill [[Probable year:: 1967]]) .
Another specific example is Cox Broadcasting Corporation v. Cohn which took place in [[Probable year:: 1975]] (Cox Broadcasting Corporation v. Cohn [[Probable year:: 1975]]) . Cohn was the father of a seventeen year old girl who had been raped and killed in Georgia. Cox Broadcasting had obtained the girl’s name from public records and broadcasted the name during a news report. According to a Georgia privacy statute, names and identities of rape victims cannot be publicized. The court ultimately decided that the girl’s name was not a matter of public interest, and hence sided with Cohn, that the incident was an invasion of privacy (Cox Broadcasting Corporation v. Cohn [[Probable year:: 1975]]) . From these two cases, it is clear that at times, the right to privacy can limit the First Amendment right to freedom of the press, especially in cases presenting information in a false light.
The second main conflict is that between the right to privacy and the right to obtain information. The press has a right to obtain information voluntarily from private sources, however, it does not have the right to compel such information. The press is generally restricted by laws against wiretapping, trespass, theft, etc. In terms of receiving information from government sources, the press can claim the constitutional right to know. The right to know is used for the purpose of informing and transmitting information to the public, especially when the government is barring such communication (Emerson [[Probable year:: 1979]], 333). There have however been cases in which the right of the press to obtain information has been limited for privacy concerns. For instance, in Pell v. Procunier journalists were prevented from interviewing prison inmates (Pell v. Procunier [[Probable year:: 1974]]) . Similar to the conflict between the right to publish and privacy, in many cases involving the right of the press to obtain information, the court attempts to balance the public’s right to know with privacy concerns. In the case of Pell v. Procunier, interviewing the inmates would not have provided the public with important information regarding the conditions of the prisons, and therefore the privacy of the inmates was upheld (Pell v. Procunier [[Probable year:: 1974]]) .
As of [[Probable year:: 1996]], the Federal Freedom of Information Act was passed which gives public access to many federal records. However, there are nine exemptions to the Act that restrict public access to certain health and medical records, documents for the purpose of law enforcement, trade secrets or classified documents, among others. These exemptions are commonly referred to in right to know cases. Additionally, the Government in Sunshine Act of [[Probable year:: 1976]] ensures that federal agency meetings are open to the public. An exception to this act is made in cases where the meetings contain, “information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.” The phrase, “clearly unwarranted invasion of personal privacy” has been broadly interpreted. Overall, the conflicts surrounding freedom of the press and privacy lack consistent legal procedure (Emerson [[Probable year:: 1979]], 351).
References:
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975): https://www.oyez.org/search/Cox%20Broadcasting%20Corporation%20v.%20Cohn
Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360
Pell v. Procunier, 417 U.S. 817 (1974): https://www.oyez.org/cases/1973/73-918
Time, Inc. v. Hill, 385 U.S. 374 (1967): https://www.oyez.org/cases/1965/22
The right to freedom of the press is commonly balanced against other rights and concerns, such as the right to privacy/ reputation and national security concerns. Freedom of the press is not inherently viewed to be above or higher than the right to privacy and potential security concerns, but rather the importance of freedom of the press is considered on a case by case basis, in comparison with the degree of other concerns. In the case of the right to privacy, free press can lead to an invasion of privacy in terms of the right of the public and the government to receive information, and can also lead to defamation especially in the case of false press or press being presented in a false light. When privacy law is applicable, historically, the courts try to assess how newsworthy and important the publication or information is for the public. The right to privacy often falls higher in the hierarchy of rights when the publication is not obviously important or newsworthy, whereas when the publication is very important for news purposes, the right to freedom of the press tends to be perceived as above the right to privacy. Additionally, in defamation cases, the degree to which reputation is harmed is considered by the courts. The courts may be more likely to uphold the right to reputation when a public figure is involved, and the cost to reputation is greater (Emerson [[Probable year:: 1979]], 333).
Another important factor is national security concerns; a tricky issue in terms of freedom of the press. There has been disagreement over what necessitates or makes permissible prior restraint on the press due to national security concerns. One example includes the case of New York Times Company vs. United States in [[Probable year:: 1971]] (New York Times Company v. United States). In [[Probable year:: 1967]], Robert McNamara, the Secretary of Defense, conducted a government study about America’s involvement in Vietnam. The work was compiled in 7,000 pages, and only 15 copies were printed. The work revealed that the government had not been transparent with the American people about its engagement with Vietnam. The study was considered classified. Daniel Ellsberg, who had helped with the project, later secretly made more copies of the study and distributed them to New York Times employees who referred to them as “Pentagon Papers.” The Nixon Administration barred further publication of the papers by means of a restraining order due to what they considered national security concerns. The New York Times appealed to the Supreme Court, and the Court ruled that the New York Times could continue to publish the Pentagon Papers. The Court decided that the Nixon Administration did not have enough justification for barring the publication of the Pentagon Papers.
Justices took different stances on the issue at hand, with some believing prior restraint to never be justified and others believing it to be justified in certain circumstances, if a national security threat is clear and serious. These justices referred to the need for a “clear and present danger,” a precedent that established, in the case of Schenck vs. United States in [[Probable year:: 1919]], that the First Amendment does not protect speech which creates a clear and present danger with which Congress is equipped to prevent, (Schenck v. United States). In New York Times Company v. United States, the majority ruled that the threat to national security by publishing the Pentagon Papers was too vague and unclear to impose restrictions on the press (New York Times Company v. United States). In certain circumstances, the Supreme Court has restricted First Amendment rights due to national security concerns. Typically, the Supreme Court attempts to find a balance between allowing freedom of the press and disallowing real security threats.
References:
Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360
New York Times Co. v. United States, 403 U.S. 713 (1971): https://www.oyez.org/cases/1970/1873
Schenck v. United States, 249 U.S. 47 (1919): https://www.oyez.org/cases/1900-1940/249us47
Freedom of the press is extremely entrenched in international law, demonstrating its high status. In [[Probable year:: 1644]], John Milton began the discussion about freedom of the press in response to the British government having to approve each publication before it went to print. Before this time, media wasn’t common, so refuting such regulation didn’t make sense (Cunningham). In [[Probable year:: 1766]], Sweden passed the first known act requiring freedom of the press (Cunningham). It was intended to prevent the Swedish government from having to approve each publication, much like Milton was advocating for in Britain a century earlier (Cunningham). Ten years later, this right appeared in the Virginia Declaration of Rights in [[Probable year:: 1776]] and was later brought by Virginian James Madison to the United States Bill of Rights (Freedom of the press, [[Probable year:: 2018]]) .
Today, the protection of expression, media, and opinion is seen in conventions and declarations worldwide. The United Nations Universal Declaration of Human Rights (UDHR, [[Probable year:: 1948]]) has a wide reach and a broad expression of freedom as it is intended to apply to all people. Article 19 states “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” (UDHR, [[Probable year:: 1948]]) . Although the UDHR is neither a treaty nor legally binding, it has heavily influenced the development of international human rights law (Australian Human Rights Commission). The UN has also signed the International Covenant on Civil and Political Rights (ICCPR), a treaty that outlines rights that “derive from the inherent dignity of a person” ([[Probable year:: 1966]], Art. 19). Article 19 of the ICCPR ([[Probable year:: 1966]]) outlines the freedom of expression, explicitly calling out the right to freely “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.” Article 5 of the UN’s [[Probable year:: 1965]] International Convention on the Elimination of Racial Discrimination explicitly expands this right to all people.
Regional supranational organizations have also called out this right explicitly. In [[Probable year:: 1953]], the Council of Europe (which contains more member states than the European Union) adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 10 of the ECHR ([[Probable year:: 1950]]) says the right of free expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Union has also adopted the EU Charter of Fundamental Rights ([[Probable year:: 2009]]) , which states in Article 11 “the freedom and pluralism of media shall be respected.” The African Union and Organization of American States (OAS) took similar steps in [[Probable year:: 1981]] and [[Probable year:: 1969]], respectively, with Article 9 of the African Charter on Human and People’s Rights and Article 13 of the American Convention on Human Rights, also called the Pact of San Jose. These freedoms were reaffirmed in [[Probable year:: 2001]] with a joint statement between the UN, OAS, and Organization for Security and Co-operation in Europe (OSCE) and again by the OSCE in the [[Probable year:: 2003]] Amsterdam Recommendations.
At a state level, there are two extremes along a spectrum of free expression and press: Egypt and Norway. In Egypt, the [[Probable year:: 2014]] constitution protects freedom of the press, though it is not protected in practice – government implemented censorship, imprisonment of journalists, and closures of media outlets are all prominent (Press freedom in Egypt, [[Probable year:: 2019]]) . Moreover, since [[Probable year:: 2015]], journalists have been restricted to telling the “official” story rather than the real one (Egypt, [[Probable year:: 2021]]) . In Norway, there is a yearly report on the freedom of the press and expression, with the main complaints resulting from online government meetings, limiting press access (Norway, [[Probable year:: 2021]]) . The United States is between these two states, where freedom of the press is a highly respected right from the First Amendment of the Constitution and is fervently protected with limited exceptions usually resulting from Supreme Court decisions. Even so, today media freedom is limited due to distrust of “mainstream” sources and the loss of local news (United States, [[Probable year:: 2021]]) . Even local government recognizes the importance of this right, demonstrated by the [[Probable year:: 2019]] passage of Queensland, Australia’s Human Rights Act.
References:
African Charter on Human and Peoples’ Rights. African Union. June 1, [[Probable year:: 1981]]. https://au.int/en/treaties/african-charter-human-and-peoples-rights
American Convention on Human Rights. Organization of American States. Nov. 22, [[Probable year:: 1969]]. http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp
Amsterdam Recommendations. Organization for Security and Co-operation in Europe. June 14, [[Probable year:: 2003]]. https://www.osce.org/files/f/documents/4/a/4[[Probable year:: 1903]]. pdf
Australian Human Rights Commission. (n.d.) What is the Universal Declaration of Human Rights? https://humanrights.gov.au/our-work/what-universal-declaration-human-rights
Cunningham. (n.d.) Brief history of press freedom, A. Britannica. Retrieved Sept. 3, [[Probable year:: 2021]], from https://www.britannica.com/story/250-years-of-press-freedom
Charter of Fundamental Rights of the European Union. Dec. 1, [[Probable year:: 2009]]. https://fra.europa.eu/en/eu-charter
Egypt. ([[Probable year:: 2021]]) . Reporters without Borders. Retrieved Sept. 8, [[Probable year:: 2021]], from https://rsf.org/en/taxonomy/term/156
European Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe. Nov. 4, [[Probable year:: 1950]]. https://www.echr.coe.int/documents/convention_eng.pdf
Freedom of the press. ([[Probable year:: 2018]], Aug. 21). History.com. Retrieved Sept. 3, [[Probable year:: 2021]], from https://www.history.com/topics/united-states-constitution/freedom-of-the-press
Human Rights Act. Queensland Legislative Assembly. Mar. 7, [[Probable year:: 2019]]. Retrieved Sept. 3, [[Probable year:: 2021]], from https://www.legislation.qld.gov.au/view/html/inforce/current/act-[[Probable year:: 2019]]- 005
International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly (UNGA). Dec. 21, [[Probable year:: 1965]]. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
International Covenant on Civil and Political Rights. UNGA. Dec. 16, [[Probable year:: 1996]]. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Norway. ([[Probable year:: 2021]]) . Reporters without Borders. Retrieved Sept. 8, [[Probable year:: 2021]], from https://rsf.org/en/norway
Tahir Institute for Middle East Policy. ([[Probable year:: 2019]], May 24). Press freedom in Egypt. https://timep.org/reports-briefings/timep-briefs/timep-brief-press-freedom-in-egypt/
United States. ([[Probable year:: 2021]]) . Reporters without Borders. Retrieved Sept. 8, [[Probable year:: 2021]], from https://rsf.org/en/united-states
Universal Declaration on Human Rights. UNGA. Dec. 10, [[Probable year:: 1948]]. https://www.un.org/en/about-us/universal-declaration-of-human-rights
U.S. Constitution. Amendment I. https://www.archives.gov/founding-docs/constitution-transcript