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Freedom of speech

Freedom of speech is the right to freely state one's opinions and ideas.

Freedom of speech is often regarded as an integral concept in democratic governance. According to these ideas, when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.

Alternatively, it may be argued that some restrictions on freedom of speech may be compatible with democracy or necessary to protect it. For example, such arguments are used to justify restrictions on support of Nazi ideas in post-war Germany.

As Tocqueville pointed out, people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. This type of suppression of speech is even more difficult to prevent than government suppression is.

Table of contents
1 Free speech in the United States
2 Freedom of speech in the European Union
3 Freedom of speech in Canada
4 Freedom of speech and the Internet
5 External links

Free speech in the United States

In the United States freedom of speech is protected by the First Amendment to the United States Constitution. Through Supreme Court decisions and popular usage it has come to be associated with freedom of expression. Some argue that this linkage is necessary, as the purpose of speech is to express ideas, and ideas can be expressed through non-speech methods of communication as well. Others argue that substituting freedom of expression blurs the distinction between meaningful debate and (sometimes prurient) entertainment. Under a freedom of expression approach, for example, erotic dancing is likely to gain greater legal protection than it would under a free speech approach. The United States Supreme Court frequently uses the SLAPS test, under which speech or expression can only be banned if it lacks serious literary, artistic, political or scientific value.

One exception to the broadening of freedom of speech to freedom of expression in the United States is in the realm of advertising. This "business expression" is still subject to greater restrictions than political, social, or artistic expression.

Prior Restraints on Speech

"Prior restraints" are governmental restrictions on speech that regulate speech or expression before it ever occurs. These governmental restrictions typically come in the form of administrative or judicial regulations. Some common examples of prior restraints are laws which require one to obtain a license or permit prior to engaging in certain forms of expression (e.g. protests or rallies) and court injunctions prohibiting certain communications before their occurrence (e.g. gag orders). The Supreme Court has labeled prior restraints on speech and publications as "the most serious and the least tolerable infringement[s] on First Amendment rights" because they have "an immediate and irreversible sanction," which has the effect of "freezing" speech.1 Because of their potential adverse effects on freedom of expression, prior restraints are viewed by the Supreme Court as "bearing a heavy presumption against [their] constitutional validity."2 In spite of this presumption, however, the Court has made it clear that when faced with a prior restraint, one is bound to follow the law or court order unless it is "transparently invalid or [has] only a frivolous pretense to validity."3

(1) Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). (2) Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 78 (1963). (3) Walker v. City of Birmingham, 388 U.S. 307, 315 (1967).

Historical Background of Freedom of Speech

Congress in 1798, along with many of the drafters and ratifiers of the Constitution, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame…; or to bring them…into contempt or disrepute; or to excite against them…hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States." The law did however allow truth as a defense and required proof of malicious intent. But this Act of 1798 made the ascertaining of the intent of the framers even more difficult to comprehend. The Federalists under President John Adams aggressively used the law against their rivals, the Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed, and the Supreme Court never ruled on its constitutionality. However, in New York Times v. Sullivan, the court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964). Not surprisingly, then, Supreme Court cases dealing with freedom of expression focus less on the framers' intent than do cases involving many other constitutional provisions. There is little that can be discerned as to the drafters' views other than their desire to prohibit prior restraints, such as the licensing scheme, and their rejection of the crime of seditious libel.

Why Should Freedom of Speech Be a Fundamental Right?

“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” Whitney v. California. 274 U.S. 357, 375 (1927).

Freedom of speech in the European Union

The European Convention on Human Rights, when signed on the 4th November 1950, imbued all of the signatories citizens with a broad range of human rights including Article 10, which entitled all citizens to free expression.

"Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information an ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

It did also include some other restrictions...

"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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Each country then had to produce a law to confer these rights to their citizens. In 1998, the United Kingdom implemented the Human Rights Act which granted the judiciary power to apply these rights to cases, and a requirement for Parliament to check compatibility of new laws with the Convention rights. If a judge finds a law to be 'incompatible' with the given Convention rights, then the law must be amended to incorporate these protections.

European-wide cases have been heard in the European Court of Justice as well as the European Court of Human Rights to guarantee these privileges - and cases have tested the need for professional integrity (as a journalist or lawyer) and the compatibility of one with the Human Rights law. The Human Rights Court has also targeted the French laws on journalism as being incompatible.

Freedom of speech in Canada

The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms. Due to section 1 of the Charter, the so-called limitation clause, Canada's freedom of expression differs from the provision guaranteeing freedom of speech in the United States of America in a fundamental manner. The section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)

This section is double edged. First it implies that a limitation on freedom of speech can be justified if it is reasonable limit. Conversely, it implies that a restriction can be invalidated if it is shown that it is not a reasonable limit.

The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity. An example of the latter use is that case Ford v. Quebec (Attorney General) decision in which the Supreme Court invalidated the Charter of the French Language also known as Bill 101. One of the reasons it gave for invalidating it was that it was not a reasonable limitation under sec. 9 of the Quebec Charter of Rights and Freedoms and under art. 1 of the Canadian Charter of Rights and Freedoms. This decision was one of the first cases after the Oakes test was established. Bill 101 was subsequently put into effect through by invoking the notwithstanding clause of the Charter.

Freedom of speech and the Internet

The development of the Internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored) and the author of any information is impossible to link to a physical identity or organization.

External links