Right/Freedom of Expression/Limitations - Restrictions

Freedom of Expression

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president ("Alien and Sedition Acts"). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime ("Schenck v. United States"). It also established, for the first time, the "clear and present danger" test, clarifying that "the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent ("Schenck v. United States"). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was "was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government" (Hudson). In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of "public peril." This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020). War may justify limitations on expression. This has long been true in the US; as Justice Holmes wrote in Schenck v. US (1919), a case over anti-draft publications, “when a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” During the Civil War, President Lincoln prohibited the publishing of information of troop movements, and government officials censored newspapers critical of the Union. During WWI, the US passed legislation such as the Sedition Act, which sought to eliminate speech “urging any curtailment of the war with intent to hinder its prosecution.” The Supreme Court has at times limited the wartime justification for restrictions. This occurred in New York Times v. US (1971), where the government was not allowed to censor publication of the Pentagon Papers, which contained information about the Vietnam War (Hudson). Contemporary jurisprudence would likely not justify some restrictions that have been allowed in the past. Schenck was decided using the clear and present danger test, which has been superseded by the more stringent imminent lawless action test (Parker). Had the newer test been used, Schenck may have been decided differently; the dissent argued that speech should be restricted only when it “imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country” (Parker). The COVID-19 pandemic has caused press crackdowns in various countries, often to downplay the outbreak’s severity. Egypt and Iran, for example have systematically curtailed reporting on the epidemic (Egypt guarantees freedom of expression in its Constitution, though this has long not been the case in practice (“Egypt). Iran guarantees free press subject to derogation in the national interest or under “Islamic criteria”). Honduras went so far as to suspend the clause in its constitution guaranteeing free speech. South Africa has curtailed free speech, albeit not to promote a rosy view of the pandemic. Rather, it has criminalized misinformation (Simon 2020). Responses to the pandemic provide insight into potential restrictions during other disasters. If a large part of Egypt or Iran were leveled by an earthquake, their governments might restrict free speech to ensure that only positive information about the recovery effort surfaces. Similarly, the South Africans who support criminalizing pandemic misinformation may also support criminalizing hurricane-safety misinformation if such a storm barrelled toward South Africa (putting aside whether this is meteorologically possible). As is argued in a report by the organization Article 19, free expression may be of even greater importance than normal during an emergency. Citizens need complete access to the truth so that they can make decisions about their safety (6). Free expression is an excellent way to ensure this truth comes out.

References:

Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo

Parker: https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test m%20of%20speech%20often%20suffers,backseat%20to%20security%20and%20order.&text=In %20other%20words%2C%20the%20Supreme,than%20in%20times%20of%20peace. Simon: https://www.cjr.org/analysis/coronavirus-press-freedom-crackdown.php Egyptian Constitution: https://www.constituteproject.org/constitution/Egypt_2014.pdf “Egypt”: https://www.amnesty.org/en/latest/news/2018/09/egypt-unprecedented-crackdown-on-freedom-o f-expression-under-alsisi-turns-egypt-into-openair-prison/

Iranian Constitution: https://www.wipo.int/edocs/lexdocs/laws/en/ir/ir001en.pdf

Article 19 Report: https://www.article19.org/data/files/pdfs/publications/freedom-of-information-humanitarian-disa sters.pdf

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Clear and Present Danger: As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. Fighting Words: In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). O’Brien Test: In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. Speech in schools: In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. Imminent Lawless Action: In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. Obscenity: The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene. Libel: Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988). Intellectual property: For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. Unlawful assembly: Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.

References:

US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/

Fighting words: https://www.mtsu.edu/first-amendment/article/293/chaplinsky-v-new-hampshire

US v. Obrien: https://www.mtsu.edu/first-amendment/article/709/united-states-v-o-brien#:~:text=In%20United %20States%20v.,of%20an%20anti%2Dwar%20protester.

RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul

Tinker v. Des Moines: https://www.oyez.org/cases/1968/21

Bethel v. Fraser: https://www.oyez.org/cases/1985/84-1667

Morse v. Frederick: https://www.oyez.org/cases/2006/06-278

Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action Libel info: https://www.freedomforum.org/libel/

Hustler v. Falwell: https://www.oyez.org/cases/1987/86-1278

Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/

Info on assembly: https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html#:~:t ext=No%20First%20Amendment%20rights%20are,raises%20a%20%E2%80%9Cclear%20and %20present

Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television

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The following country-specific descriptions are from a 2019 US Government Report.

Argentina: Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals.

Canada: The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections.

China: China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. France: The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests.

Germany: German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.

Japan: The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful.

Netherlands: The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not.

New Zealand: New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.”

Sweden: Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. America places these restrictions on speech much less frequently, or not at all.

Hate Speech: Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.

Blasphemy: About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws).

Political Content: Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.”

Public Deliberations: It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. Proportionality Analysis: Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.

References:

US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/

RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul

Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action

Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/

Island School District v. Pico: https://www.oyez.org/cases/1981/80-2043

Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television

Article on German Bill: https://www.dw.com/en/germanys-government-approves-hate-speech-bill/a-52433689

Article on EU hate speech: https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Sp eech

Blasphemy internationally: https://www.uscirf.gov/reports-briefs/special-reports/respecting-rights-measuring-the-world-s-bl asphemy-laws

Blasphemy in Italy: https://end-blasphemy-laws.org/countries/europe/italy/

US Government Report on Free Expression Abroad (info on China, for example): https://fas.org/irp/eprint/lloc-limits.pdf

Japanese Penal code: http://www.japaneselawtranslation.go.jp/law/detail/?id=1960&vm=04&re=02

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Universal Declaration of Human Rights: This was adopted by the UN General Assembly in 1948. Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

European Convention on Human Rights: This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in Aksoy v. Turkey (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). In Ceylan v. Turkey (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test.

American Convention on Human Rights: This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.” “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65).

Cairo Declaration of Human Rights in Islam: This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah. 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah. (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith. (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination. International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals.

African Charter on Human and People’s Rights: This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.

References:

Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/

European Convention of Human Rights: https://www.echr.coe.int/Documents/Convention_ENG.pdf

American Convention: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm

Posenato: https://www.researchgate.net/publication/295244849_THE_PROTECTION_OF_THE_RIGHT_ TO_FREEDOM_OF_EXPRESSION_A_PANORAMA_OF_THE_INTER-AMERICAN_COU RT_OF_HUMAN_RIGHTS_CASE_LAW_A_PROTECAO_DO_DIREITO_A_LIBERDADE_ DE_EXPRESSAO_UM_PANORAMA_DA_JURISPRUDENCIA_DA_COR/link/56e9708808a edfed7389909f/download

International Covenant on Civil and Political Rights: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Article about whether and how the ICJ enforces human-rights law: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=njih r

Flauss: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1124&context=ilj

Cairo Declaration: http://hrlibrary.umn.edu/instree/cairodeclaration.html

African Charter: https://www.achpr.org/legalinstruments/detail?id=49

Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), https://en.unesco.org/sites/default/files/african_courts_decisions_final_eng_1.pdf

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Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the "harm principle." This, Mill claims, is the only context in which power can be "rightfully" executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an "offense principle" is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a "negative mental state" (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).

References:

Mill, JS On Liberty

Simpson, Robert Mark. “Regulating Offense, Nurturing Offense.” Politics, philosophy & economics 17, no. 3 (2018): 235–256.

Should this right be limited when limiting it would jeopardize democratic norms?

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At times, states have felt intimidated by different instances and types of expression.

Historical concerns about expression have been documented as far back as ancient Rome, where laws were put in place that made offenses against state leaders and the country in general a criminal act. Later, this legislation evolved to enact severe punishments on those who caused offense to the sovereign, whether through verbal or other attacks (“Lese Majesty”). In Medieval England, heretics - those that expressed sentiments and performed acts contrary to the Church of England and its teachings - were prosecuted and burned at the stake for threatening religious authority (Statutes of the Realm, 2:12S-28: 2 Henry IV). Centuries later in 1798, the US government made it illegal for any citizen to print, state, or distribute words about the government or its members that were considered to be spiteful and untrue by passing the Sedition Act. Those who were prosecuted for such crimes were largely Democratic-Republican Journalists, indicating that the ruling Federalist party passed the legislation to suppress opposition figures whose speech threatened their authority (“Alien and Sedition Acts ” 1798).

In the current era, studies evaluating freedom of expression suggest that the right continues to be viewed as a threat to many national governments. In fact, according to the 2023 Freedom in the World report, the number of countries that are classified as having the lowest possible score in terms of freedom of expression have doubled. Additionally, statistics show that 109 countries approved some sort of legislation that restricted this same right in the year 2022 (Gorokhovskaia, Shabaz, and Slipowitz 2023). In many cases, both recently and in the past, regimes of all types have justified limitations on the freedom of expression as actions meant to protect public interests in some way, shape, or form.

Governments may demonstrate that they feel threatened by free expression through police crackdowns or legal actions. As an example, in 2022 Iranian authorities began to violently crack down on citizens protesting the death of Mahsa Amini, a young woman who had perished at the hands of the country’s morality police. Demonstrations grew, with many opposing the Islamic republic’s policies, including mandatory veiling. As a result, authorities reacted by employing internet blackouts, arrests, imprisonments, and more (Ziabari 2023). President Ebrahim Raisi justified these repressive actions and threatened further crack down on dissidents, stating that they were opposing Iran’s “security and tranquility” (The Guardian 2022), making it necessary to curtail freedom of expression.

Fears that freedom of expression may compromise public security have also been demonstrated in countries such as the United States. A primary example is the Supreme Court case Brandenburg v. Ohio, decided in 1969. The proceeding was based around a Ku Klux Klan leader who had spoken at a rally for the organization, “advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” (Brandenburg v. Ohio 1968, 444-445), according to prosecutors. As a result of this reasoning, the plaintiff was convicted under the Ohio Criminal Syndicalism statute, a decision that was later appealed to the Supreme Court on the grounds that it violated freedom of speech and expression as defined by the 1st Amendment of the US Constitution. This piece of legislation was described by the court as a way to prevent the teaching “of the moral propriety or even moral necessity for a resort to force and violence” (Brandenburg v. Ohio 1968, 448), indicating that Ohio’s state government had produced the law due to concerns that certain types of expression could lead to public corruption or insurrection. Ultimately, the Supreme Court deemed the state’s Criminal Syndicalism statute unconstitutional, widening the scope of freedom of expression in the United States (Brandenburg v. Ohio 1968, 448-449).

The interests and values of a majority group often play a contentious role in governments’ feelings and responses to certain expressive acts. Offending a dominant religion, ethnicity, or other social group tends to be perceived as a threat to the government, which can be viewed in the 2005 case heard by the European Court of Human Rights (ECHR), İ.A. v. Turkey. The applicant, a citizen of Turkey who was referred to throughout the case as Mr. İ.A., owned and directed a publishing house which had released the novel “Yasak Tümceler”, which discussed various religious and philosophical issues. Turkish prosecutors deemed the book an offense to Islam and charged him with blasphemy against the nation’s dominant religion based on Article 175 of Turkey’s Criminal Code (İ.A. v. Turkey 2005, 1-2). As a result, Mr. İ.A. appealed to the ECHR, saying that his conviction infringed upon the right to freedom of expression as defined by Article 10 of the European Convention on Human Rights. For their part, the Turkish government insisted that “the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim” (İ.A. v. Turkey 2005, 4), and thus freedom of expression had to be limited. The ECHR eventually sided with the Turkish government, agreeing that “as paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane” (İ.A. v. Turkey 2005, 5). Given this reasoning, the court confirmed that the limitations authorities placed on the applicant’s freedom of expression were justified and a “pressing social need” (İ.A. v. Turkey 2005, 5-6). The Turkish government’s actions and legislation to protect the religious majority’s feelings from an expression that abused it, backed by the ECHR.

In some cases, freedom of expression can be viewed by the government as a threat to public morality. This justification for limiting the right can be viewed in another ECHR case, Handyside v. The United Kingdom, which, similar to İ.A. v. Turkey, was based around the publishing of a book. The applicant, Mr. Handyside, owned a publishing company that bought the British rights to a work titled The Little Red Schoolbook, aimed towards school-aged audiences and including a section that discussed sexual matters (Handyside v. The United Kingdom 1976, 3-6). After it was released in the UK, many complaints about the book’s contents were made, with authorities eventually convicting Handyside of possessing obscene books for publication for gain under the Obscene Publications Acts of 1959 and 1964 (Handyside v. The United Kingdom 1976, 5), as well as confiscated the copies found in his office. Mr. Handyside then appealed these convictions to the ECHR on the grounds that the United Kingdom’s actions violated his right to freedom of expression under Article 10 of the European Convention on Human Rights, and breached several other rights laid out in the same document (Handyside v. The United Kingdom 1976, 13). However, the British government argued that they were justified in their actions, explaining that the limitations on expression were “necessary in a democratic society… for the protection of… morals” (Handyside v. The United Kingdom 1976, 16). This sentiment was backed by the ECHR, which found “that the 1959/1964 Acts have an aim that is legitimate under Article 10 para. 2 (art. 10-2), namely, the protection of morals in a democratic society” (Handyside v. The United Kingdom 1976, 16).

References:

“Alien and Sedition Acts (1798)”. n.d. National Archives. Accessed June 7, 2023. https://www.archives.gov/milestone-documents/alien-and-sedition-acts#sedition

Gorokhovskaia, Yana, Adrian Shahbaz, and Amy Slipowitz. 2023. “Freedom in the World 2023: Marking 50 Years in the Struggle for Democracy.” Freedom House.

The Guardian. 2022. “Protests Spread in Iran as President Raisi vows to crack down.” September 29, 2022. https://www.theguardian.com/world/2022/sep/24/protests-spread-in-iran-as-president-raisi-vows-to-crack-down

Handyside v. The United Kingdom, Application No. 5493/72, ECtHR judgment of 7 December 1976. https://hudoc.echr.coe.int/eng?i=001-57499

İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 December 2005. https://hudoc.echr.coe.int/eng?i=001-70113

“Lese Majesty.” The Columbia Electronic Encyclopedia, Columbia University Press, 2013, https://encyclopedia2.thefreedictionary.com/lese+majesty. Accessed 7 June 2023.

Parliament of the United Kingdom. Obscene Publications Act 1959. 7 & 8 Eliz. 2. c.66 https://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/section/1 Statutes of the Realm, 2:12S-28: 2 Henry IV Supreme Court Of The United States. U.S. Reports: Brandenburg v. Ohio, 395 U.S. 444. 1968. Periodical. https://www.loc.gov/item/usrep395444/.

Ziabari, Kourosh. 2023. “Iranian Protests and the Crisis of Free Speech.” Arab Center Washington DC. February 23, 2023. https://arabcenterdc.org/resource/iranian-protests-and-the-crisis-of-free-speech/

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In some cases, governments have curtailed freedom of expression for reasons that are not generally seen as permissible by the standards of the United States.

As noted by Professor Jérôme Viala-Gaudefroy, not all types of expression are protected under US law. Those involving “obscenity, fraud, child pornography, harassment, incitement of illegal conduct and imminent lawless action, true threats, and commercial speech such as advertising, copyright or patent rights” (Viala-Gaudefroy 2021) can be restricted, among others. That said, there have been instances within the US where the right was curtailed for a reason not listed above. These justifications, therefore, would be viewed as non-permissible restrictions on freedom of expression.

The Minnesota state legislature passed a statute that barred voters and other individuals from wearing political apparel and accessories inside a polling place on election day, which included a “political badge, political button, or other political insignia” (Minnesota Voters Alliance v. Mansky 2018, 1). The legislation was meant to create “an island of calm in which voters [could] peacefully contemplate their choices” (Minnesota Voters Alliance v. Mansky 2018, 11), essentially eliminating disruptions at the polling place. However, the ban was challenged by the Minnesota Voters Alliance (MVA) and other individual plaintiffs, who argued that it violated their first amendment rights “both on its face and as applied to their particular items of apparel” (Minnesota Voters Alliance v. Mansky 2018, 1). The Supreme Court agreed with the general sentiments of the Minnesota law, stating that “casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction (Minnesota Voters Alliance v. Mansky 2018, 11). However, the body ruled in favor of the MVA, explaining that the legislation was too broad and muddled - “the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out… the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test” (Minnesota Voters Alliance v. Mansky 2018, 12-13). The state’s ban on expression within polling places was thus not deemed permissible.

Similar to US law, the European Convention on Human Rights does not protect all types of expression. Article 10 of the document clearly states that the right can be restricted when “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Council of Europe 1950, 12). However, what a country believes is a necessary restriction on one of these grounds does not necessarily match up with the opinion of the European Court of Human Rights, which has the final say on what types of expression are permissible.

In 2005, journalist Eynulla Fatullayev, an Azerbaijani national, visited Nagorno-Karabakh, a region that has been the subject of a territorial dispute between Armenia and Azerbaijan and at the time was controlled by Armenian military forces. Fatullayev interviewed both locals and officials during his visit, as well as some Azerbaijani refugees who had fled the region, which he then published the following year. In his piece, Fatullayev claimed that during the Nagorno-Karabakh war in 1992, civilians “had been mutilated by [their] own” (Fatullayev v. Azerbaijan 2010, 4) Azerbaijani forces as they attempted to flee the region, among other statements. Upon reading the article, a group filed a criminal complaint against Fatullayev, asking that he “be convicted of defamation and of falsely accusing Azerbaijani soldiers of having committed an especially grave crime” (Fatullayev v. Azerbaijan 2010, 5). Fatullayev was later convicted of these crimes, as well as of terrorism or the threat of terrorism for another article he had published which appeared to address Iranian-Azerbaijani relations and threaten ethnic conflict. As a citizen of a country that signed the European Convention on Human Rights (hereby known as“the Convention”), Fatullayev was able to appeal his convictions to the European Court on Human Rights (“the Court”) on the grounds that his right to freedom of expression as defined by Article 10 of the Convention had been violated. The Court sided with the applicant, saying that he was presenting a set of opinions in a debate and did not seek to defame or act maliciously towards the victims and actors involved in the war, and thus was not abusing their rights. Additionally, the Azerbaijani government’s interference was not “necessary in a democratic society” or “a pressing social need” (Fatullayev v. Azerbaijan 2010, 22). Therefore, the body concluded “that the statements that gave rise to the applicant's conviction did not amount to any activity infringing the essence of the values underlying the Convention or calculated to destroy or restrict the rights and freedoms guaranteed by it…the applicant's freedom of expression cannot be removed from the protection of Article 10” (Fatullayev v. Azerbaijan 2010, 22). By the Court’s standards, then, Azerbaijan’s attempt to inhibit the applicant’s freedom of expression was unacceptable.

References:

Council of Europe. 1950. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. https://www.echr.coe.int/documents/convention_eng.pdf

Fatullayev v. Azerbaijan, Application no. 40984/07, ECtHR judgment of 4 October 2010. https://hudoc.echr.coe.int/fre?i=001-216685

Minnesota Voters Alliance v. Mansky, 849 F. 3d 749 (2018). https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf

Viala-Gaudefroy, Jérôme. 2021. “The Idolization of Free Speech in the United States.” The Conversation, February 22, 2021. https://theconversation.com/the-idolization-of-free-speech-in-the-united-states-155778#:~:text=Free%20speech%20is%20not%20absolute,advertising%2C%20copyright%20or%20patent%20rights

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Freedom of expression exists at the core of the United States of America and the freedoms it guarantees to its people. Beyond a core tenet in America, freedom of expression holds a defining place in democracies around the world, shaping their culture and development. Article 19 of the International Covenant on Civil and Political Rights, adopted by the United Nations in December 1966, explains how freedom of expression “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (U.N. General Assembly 1966, art. 19). With such importance, infringement upon this freedom can be extremely contentious. In US history, this context has resulted in the development of the State Action Doctrine as delivered by the Supreme Court. According to the State Action Doctrine, “the US Constitution in general, and its individual rights in particular, apply only to state action, not to private action” ("State Action" 2017). In understanding the question of whether private actors curtail freedom of expression, the State Action Doctrine responds with a definite yes. This understanding has been developed through a series of court cases, creating a precedent that allows for private actors to breach free expression.

In United States v. Cruikshank, the Supreme Court ruled “the 14th Amendment's Due Process and Equal Protection Clauses applied only to state action, and not to violations of civil rights by individual citizens.” (United States v. Cruikshank, 1875). This landmark decision took place following the Colfax Massacre wherein “300 white Democrats, many of them former Confederate soldiers,” were hoping “to dislodge an armed cadre of 150 freedmen and white Republicans who had barricaded themselves inside” in order to protect an election (Pusey 2021, 72). Due to the absence of civil rights protections in Louisiana, where the Colfax Massacre occurred, the state bore no responsibility and could not prosecute individuals for violating others' rights. This case is relevant to understanding how freedom of expression can be curtailed by private actors. It set a precedent that allowed private actors to infringe upon others' rights, such as voting, because of the state's lack of responsibility.

While legal precedents focus on the ability to discriminate, freedom of expression remains relevant because the freedoms “of speech, of the press, of association, of assembly and petition,” that comprise expression can be subject to that discrimination (ACLU, 2002). Further legal contributions exist along with social media usage statistics that present high percentages of US adults using various platforms. A Pew Research report found that 83% of US adults reported they ever used Youtube, 68% used Facebook, and 47% used Instagram (Pew Research Center, 2024). The private actors that run social media companies are able to curtail freedom of expression aided by Section 230 of the 1996 Telecommunications Act. This provided “immunity to those that screened or removed offensive or indecent material that was posted on their sites by third parties” (First Amendment Encyclopedia, s.v. "Communications Decency Act and Section 230"). Originally created to “prevent minors from gaining access to sexually explicit materials on the internet,” the Telecommunications Act of 1996 has granted media platforms the ability to tailor violations of freedom of expression. Instagram, a social media platform used by just under 50% of Americans, explains their terms for content removal within their community guidelines (Pew Research Center, 2024) They “may remove entire posts if either the imagery or associated captions violate their guidelines,” some of those violations being nudity, promoting hate speech, and bullying amongst others (Instagram Help Center, n.d.). With laws and legal precedents to support infringement and equal opportunity and anti-discrimination policies protecting people’s freedoms, private actors are certainly able to curtail freedom of expression, but with limitations.

References

ACLU. 2002. “Freedom of Expression.” American Civil Liberties Union. March 1, 2002. https://www.aclu.org/documents/freedom-expression.

"Communications Decency Act and Section 230." First Amendment Encyclopedia. Accessed June 24, 2024. https://firstamendment.mtsu.edu/article/communications-decency-act-and-section-230/#:~:text=To%20encourage%20internet%20service%20providers,their%20sites%20by%20third%20parties.

Instagram Help Center. s.v. "Privacy Settings." Accessed June 24, 2024. https://help.instagram.com/477434105621119#.

Pusey, Allen. "Colfax Massacre Convictions Tossed: March 27, 1876." ABA Journal 107, no. 1 (February-March 2021): 72. Gale Academic OneFile. Accessed June 20, 2024. https://link.gale.com/apps/doc/A653471522/AONE?u=anon~c9675132&sid=bookmark-AONE&xid=4c07453e.

Pew Research Center. "Social Media Use in 2024." Pew Research Center. January 31, 2024. Accessed June 24, 2024. https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2024/01/PI_2024.01.31_Social-Media-use_report.pdf.

"State Action." Max Planck Encyclopedia of Comparative Constitutional Law. Last modified February 2017. https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e473#:~:text=The%20state%20action%20doctrine%20of,action%2C%20not%20to%20private%20action.

U.N. General Assembly. 1966. International Covenant on Civil and Political Rights. Treaty Series, vol. 999, p. 171. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

United States v. Cruikshank. 92 U.S. 542 (1875).