Freedom of Expression/Conflicts with other Rights/Other fundamental
Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?
Rights to privacy often conflict with the right to free expression. Furthermore, noted by Duke University Law Professor George Christie, often in Europe, speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). Though, Christie argues, this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).
Explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression.
Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression.
In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action" or was “likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.