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Published: Fri, 02 Feb 2018
Speech and expression
What is the meaning of speech and Expression?
The international instruments of human rights have adopted the word ‘expression’ for the right to freedom of expression and they have chosen it in preference to ‘speech’. Therefore, it is necessary to explain the meaning of speech and expression and why the word ‘expression’ has been choosen for this purpose. The word ‘speech’ normally gives the meaning of spoken words, but taking it in broad sense will not only include orthographic items, such as ‘‘words spoken or penned” but it also includes photographs, painting and performances. The concept of speech becomes confused when it encompasses the activities of burning a flag and displaying a swastika. The question to define speech is especially important for judges who interpret the law in a court. Simon lee has stated that the protection of speech is not limited to the spoken or written words but it is actually the communication of ideas and which could also be achieved through pictures. According to Simon lee, our approach to the commitment of free speech must be looking in the way, in which the speech is used. It has been argued by Richard stone, that ‘speech’ may refer to the most clear forms of expression, such as writing books, or articles, making speeches, or broadcasting, but This purpose can also be achieved through demonstrations. For example, the events in Eastern Europe in the past have clearly indicated the power of demonstrations. It can also be achieved through protests against the government policies. Therefore, the scholars have adopted the meaning of ‘expression’ in broader sense which also includes verbal, physical and artistic expression (e.g.; painting, photograph, sculpture and music).
Moreover, if we read all the relevant articles about freedom of expression, it does not say that whether artistic expression is included in its ambit or not. As it was explained in muller&others vs. Switzerland, about article.10 of ECHR (freedom of expression), that article. 10 does not distinguish between different forms of expression and the court said in its arguments that article.10 of ECHR also includes ‘freedom of artistic expression- notably within freedom to receive and impart information and ideas. Similarly, one can also argue that satire is also a form of artistic expression and it also come within the ambit of freedom of expression, as it was argued in the case about ‘‘freedom of expression: cartoon- 9/11- condoning terrorism”
Thomas Scanlon has defined the concept of expression in totally different way. He has presented some acts of expression having some attitude or proposition communicated by its agent to other persons and according to him, if an act is to be classified as an act of expression, then it must be linked with some proposition or attitude to convey its message to others. Therefore, it could be argued that freedom of expression is a broad concept which can take many forms and goes beyond the verbalization of ideas and it includes written words, physical expression, posters, demonstration, movies and artistic expression, etc.
The Human rights committee states in its General comment No.10, that Article.19, paragraph 2 of ICCPR requires protection of the right to freedom of expression, which includes freedom to ‘impart information and ideas of all kinds’, in whatever medium, ‘either orally, in writing or in print, in the form of art, or through any other medial of his choice’…. The Human Rights Committee also confirmed the non-verbal expression as protected under article 19 of ICCPR. In Ballantyne et al v. Canada, in which the Government of Quebec asserted that commercial activity such as outdoor advertising does not fall under article.19 of ICCPR. But the HRC opposed the opinion of Quebic’s Government and said that ‘Article 19, paragraph 2, must be interpreted as including all form of subjective ideas and opinions which are compatible with article 20 of the covenant. In the opinion of HRC, the commercial element of an expression is also included in the scope of its protection.
The Right and its nature
No rational person can refuse the significance of the Freedom of speech. The ‘principle of freedom of speech’ has been widely recognised and it occupies very important place in any decent society. It is the Free speech, which foster thoughts. Communication is an important matter among the free beings and more importantly, this is the basic and substantial element of our lives as social beings. Freedom of speech aids in growing the human intellect, with the help of it we can discover the truth and through fair criticism, those who are in authority are compelled to review to their conduct and to make themselves more accountable, As stated by CATO, in his letter that freedom of speech is the right of every man as far as it does not violate the rights of other people and ‘‘without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech”. The right to Freedom of speech or Expression protects people’s freedom to communicate in public. ‘Communication’ is to be understood in broad sense and which covers not only the ‘language-dependent communication but also the pictorial and musical communication’. Therefore, it covers a wide range of activities such as freedom to demonstrate, freedom to write and publish one’s idea, displaying banners or posters, picketing, wearing uniforms, distributing leaflets, paintings, and in modern times freedom of both print and electronic media including internet.
For liberalists, whose primary concern is the individual and who see individual as an end and not the means, Freedom of speech is supreme in nature and they considered this right as an unqualified right which cannot be subjected to any restriction. They have strongly emphasised on individual freedom and holds that individual liberty is the only proper concern of the state. To go for its legal basis, they would refer to the First Amendment of US constitution, which says ‘‘congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”. To read this provision of US first amendment, in the Madison’s draft of First Amendment, says that ‘The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” On the other side of the citadel, there are those who are even not ready to consider it as a right, but a ‘political prize’. It can be taken back at anytime and this is something left by the liberals, has yet to be understood. According to S.Johnson and S.Fish, ‘Nowadays the First Amendment is the first refuge of scoundrels”.
Nevertheless, there are people in the middle who call for modest approach. For them, the freedom of speech is no doubt a right, and not of a secondary nature but a fundamental one and this right is to be viewed in the hierarchy of other rights. The correct position of the notion and its limits (if any) will be discussed in the later part of this chapter. Here some theories for its justification are highlighted.
Arguments in favour of free speech:
Scholars differ on the issue of arguments that support the freedom of speech. Some of them go for a consequentialist approach, while for others, the Non-consequentialist approach should be applied. By the concept of consequentialism, the supporters of this argument hold that speech is to be protected because it produce desirable results, whereas to restrict the speech will bring undesirable consequences or results.
The bifurcation of justifications is not a division that is done only for the sake of division. This concept will be resorted to, when we will be exploring the reasonable boundaries of free speech. Freedom of speech works in a network of rights and without highlighting its significance, it is not possible to allocate a proper place for it in the system.
Majority of the 20th century liberal writers apply the consequentialist approach to justify a right of freedom of speech/expression. This is one family of theories, who hold the opinion that the reason to protect the freedom of speech is its consequences. This right produce various type of consequences, for example, the right to freedom of expression produce truth, autonomy, or virtue. Stanley fish, argues that those who hold that free speech bring the ‘good’ as a consequence, may be protected or promoted by the free speech regime; but once this ‘good’ has been specified, for example, the speech which brings discovery of truth or promotion of democracy, then it could be argued after its specification that a particular form of speech will undermine it. Therefore, for Stanley fish, ‘there is no such thing as free speech’ because if people have a firm mind, not to tolerate the undesirable results of any speech and if you have already committed yourself to the ‘good’ consequences, then it means that free speech does not exist in reality. Stanley fish further argues that freedom is only important to the people because it produces valuable consequences and it makes a logic that those actions which will undermine those values, may not be protected and for protecting such values as consequences of speech, the undesirable actions must be restrained. The supporters of consequentialist theories have provided different justifications for protection of free speech. Some of them are as follows.
Free Speech Discovers Truth:
Many scholars maintain that speech promotes truth and it helps the discovery of truth. The basis of this argument is that nobody has a monopoly on truth. ‘promoting truth’ is the most familiar argument for freedom of speech. The most prominent scholars of this justification are Miltion, Oliver Wendell Holmes, Louis Brandies. But the ‘Truth discovery’ argument is actually the core of John Stuart Mill’s defence of freedom of speech in his writing ‘On Liberty’.
In Mill’s view, ‘if the government suppresses communications, it may suppress ideas that are true or partly true. Even if an idea is wholly false, its challenge to received understanding promotes re-examination which vitalizes truth’. Moreover, if voice is given to a wide variety of views over the long run, more possibility is of these true views rather than false views in case of suppression by the government. The theory of truth discovery is itself subject to many challenges, for example, many argue that the objective ‘truth’ does not exist; and if it exists, human intellect cannot identify it; and free discussion does not necessarily contribute to truth discovery. According to Milton, Locke, and Mill, in pursuing truth, individuals actually exercise and develop their intellectual capacities. According to Eric Barendt, truth may be regarded as an autonomous and fundamental good and on the basis of ‘Truth discovery’ theory, one might assume that this is a coherent concept and that it can be discovered and justified. In Eric Barendt’s view, this was also the Mill’s position about the principle of ‘Truth’ as a justification for the principle of freedom of speech.
Furthermore, it has been argued that those domains in which truth is considered as a principal value- for example, in legal proceedings, expression in such cases is always regulated and restricted. For instance, to forbid the publication of the ‘pentagon papers’ actually obstructed the search of truth about U.S involvement in Vietnam war. If one confine himself to this belief, then one would definitely condemn the prohibition of such publication, otherwise it could be prohibited on the bases of more important factors or values, such as secrecy of government documents in favour of the public at large. The above discussion seems that the Truth-discovery reason has little to do with so many liberties and due to the connection between understanding and communication, it would be enough to say that Truth-discovery is an important reason for a distinctive principle of freedom of speech.
Free Speech Supports Democracy:
The principle of modern democracy and the freedom of speech go side by side and complementing each other. By democracy is mean ‘‘a political system which in some way takes account of the wishes of the people in decisions about how they are to be governed and by whom.” For example, in United Kingdom, this purpose is achieved through right to vote by peoples in general elections of the parliament.
Freedom of speech contributes to the prospect that the people and their representatives cannot seize truths that are important for political life. It can improve identification and accommodation of interests and it can ‘support wholesome attitudes about the relations between officials and citizens’. Moreover, it has been assumed that a better informed citizenry is necessary for a better government as well as better political decisions. Because suppression of political ideas by the government may be used wrongly and for this reason, the application of free speech principle is central to the political affairs. Owen Fiss, has argued that the purpose of free speech is not the development of individuals but rather ‘the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live.’
The argument of democracy in favour of free speech, has been discussed in the judgement by united states supreme court. Mr. Justice Brandies, states in Whitney v. California, that ‘those who won our independence belived 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 arbitray… 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 the great menace to freedom is an inert people; that public discussion is a political duty; and that this should be the fundamental principle of American government.’
The democratic government requires that the citizens who elect it will be able to assess its performance. But here, in democratic argument for freedom of speech, is a paradox as well. Although freedom of speech is said to a democratic principle, yet it in many ways contradicts the doctrines of modern democracy. As Frederick Schauer argues, that ‘Freedom of expression is normally thought to be a right against governmental regulations, even when those regulations have been democratically enacted.” Therefore, the value of democratic decision-making will appear on two sides. One one side, the value may appear on the side of striking down the law, because of its importance as a corollary of democracy. On the other side, this value may appear on the side of upholding the law, which certainly represents the will of democracy. For these reasons, it could be argued that striking down of those laws, which have been democratically enacted in a proper democratic system, is obviously paradoxical.
Nevertheless, the argument from democracy is one of the most important justifications presented in support of free speech.
Many modern writers are of the opinion that the main modern justification for freedom of speech is its capacity and ability to promote tolerance, as suggested by Lee Bollinger. Larray Alexander has stated in his/her book, that ‘‘freedom of expression leads to development of tolerant attitudes towards other’s beliefs as well as to becoming thick skinned about critical, insulting, and offensive statements.” The high incidence of tolerant attitudes are really important for pluralist societies and without it these societies can lead to a civil war and would not be able to maintain their democracy. Therefore, freedom of expression is necessary for its assistance in the development of essential virtues, such as toleration.
In Bollinger’s claims, living in a regime of free speech can help us to teach tolerance of many differences just as we can achieve the tolerance of religious diversity in any regime of religious liberty. Moreover, it has also been claimed by Lipset, that the ‘‘most important factor differentiating those giving democratic responses from the others has been education”. In his view, education can play an important role in promoting democratic values and to support the democratic practices.it can be followed by the above arguments that promoting tolerance is one of the important justification for freedom of speech, but it cannot be claimed that this is the primary justification of free speech and even if Dean Bollinger have more force than other justifications especially with regard to extremist destructive speech or hate speech, it does not mean that this justification can also be applied to so many other forms of speech. However, in principle it seems logical that free speech promotes tolerance, and if it has not been practice, at least it should promote tolerance.
Apart from the above three important justifications, many other arguments of consequentialist nature are also forwarded which include: exposure and deterrence of abuses of authority by public officials, personal development and sense of dignity, independence of judgement.
Many modern thinkers argue that freedom of speech is to be protected as it is regardless of any justification. Yet it may have some utilities and benefits, but we should support it and it is enough that it is ‘freedom of speech’ and nothing else. Kent greenawalt says that non-consequentialist justification is ‘‘one which claims that something about a particular practice is right or wrong independent of the consequences.” Stanley fish puts it in different words. Fish says that ‘‘nonconsequentialist position is one in which freedom of speech is not subordinate to some other value or tied to the calculation of empirical effects but is asserted and honored simply for itself.” Furthermore, the non-consequentialist theories do not ignore the consequences everytime, but basically the non-consequentialist theories reach to the decisions on the basis of something other than or in adition to the aggregate of consequences of choices. Nevertheless, for the Non-consequentialist approach, their supporters still have justifications for the principle of freedom of speech.
Social Contract Theory And Individual:
Many liberal democracies are influenced by John Locke’s socieal contract theory. This theory puts individual at the centre. According to it a state came into being, when individuals entered into a social contract with the government, giving the government the responsibility to secure their lives, liberty and property, but they did not give the state authority to interfere in other domains. As a result many western ideas of democracy support much less intervention in the liberties of the citizens. According to John Lock, ‘‘the legitimate authority of government is based on consent and is limited to the protection of rights and interests that individuals could not adequately safeguard.” John Lock, have also developed the theory of natural rights, through which individuals have inherent right to liberty which Lock defines ‘‘the power to control one’s own person, actions, and possessions without interference by other.” But at the same time he has also argued that some type of liberties cannot be interfered or surrenedered when the individual enter to the society. They cannot be regulated or interfered by the government, although like other rights these rights must obey the rights of others.
By analysing this theory, we can reach to the argument that this theory is actually against the suppression of political ideas, even if it is approved by the majority in a government. Therefore, there will be no exaggeration in the assertion that freedom of speech is to be one of the basic liberties, this theory has a great influence in promoting the idea that people should be left free and their right of free speech may not be interfered with by the state.
Respect For Individual’s Autonomy:
The legal and political theorist have invoked to the concept of autonomy as justification for a wide range of rights which also include the right to free speech. The defence of autonomy for the principle of free speech has been mostly used by the liberal theorists which include C.Edwin Baker, Ronald Dworkin, Charles Fried, Diana T. Meyers, Thomas Nigel, Martin Redish, Thomas Scanlon, and David Strauss.
The philosophy of autonomy concept states that ‘government should treat people as it would treat autonomous persons… the most straight forward claim is that the government should always treat people as rational and autonomous by allowing than to have all the information and all the urging to action that might be helpful to a rational, autonomous person making a choice’. In the words of Thomas Scanlon, ‘‘autonomous person cannot accept without independent consideration the judgement of others as to what he should believe or what he should do.” Moreover, Owen Fiss has further prescribed the importance of autonomy as a justification for free speech. According to him, it cannot be confined to individuals only but it could also be extended to organisations as well, and this is not due to its role in the development of the individual but because of its contribution to political life and that contribution can be made by both individuals and organisations.
Justifying the free speech on the basis of this theory, the question would always arise as whether the government should refrain from interfering in free speech altogether? And among the individuals which one is rational and which one is not? As a general rule, all the citizens should be taken as rational and treated as autonomous, unless proved otherwise, in which case the government is not barred from intervening. As kent greenawalt has argued in his article that the general principle of treating citizens as autonomous persons would not mean to have a freedom of every kind of communication, but the basic principle should be that ‘the government must always treat citizens as autonomous by maximizing opportunities for informed choice would be powerfully protective of many kinds of speech.”
Dignity And Equality Of Man:
This is one of the strongest justification of non-consequentialist nature put forwarded in the favour of free speech; that the individual should be treated in a way of dignity and equality. This justification seems to be closely associated with the previous one. John Stuart Mill also supported this conception as one of the justifications for free speech as he said: ‘the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary for the dignity of person’.
In the words of Kent: ‘‘As a matter of basic human respect we may owe it to each other to listen to what each of us has to say, or at least not to foreclose the opportunity to speak and to listen. Under this view, suppression represents a kind of contempt for citizens, that is objectionable regardless of its consequences, when suppression favous some points of view over others, it may be regarded on failing to treat citizens equally.” The persons are not only free but also equal, brings us to the right of equality and this right has been widely recognised in the international human rights instruments as well as in constitutions of different jurisdictions. On the basis of equality, all individuals are equal. Therefore, no one can interfere with the freedom of another and similarly because of the freedom of all, no one has the right to dominate another person.
Like other theories, this one is also subject to many critiques; however, what is expected from the state is that rather than a complete forbearance, it should ensure equality and non-discrimination, taking into account the dignity of man while putting restrictions on free speech.
Boundaries Of Freedom Of Speech:
At present, there are two prevailing conceptions which restrict the use of free speech. The concept we are discussing here is focussed on western understandings about the principal of free speech.
The Harm Principle:
This idea was first given by John Stuart Mill. It is one of the most famous liberal defences of free speech. Mill in his work On Liberty comments:
‘‘If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered…Absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological.”
This is one of the strongest defences of free speech ever made. Mill after defending the freedom of speech to that degree is, nevertheless, not against imposing some sort of restriction on its exercise. He would validate only one principle; ‘‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” About the harm, Mill is of the opinion that a speech is said to have caused harm if ‘invades the rights of others.’ Despite being the strongest supporter of free speech, Mill again concedes with the following three theses:
That speech can cause harm;
That there can be a restriction on free exercise of speech;
That the freedom of speech is a right, not superior to other rights, but sometimes subordinate to them.
Furthermore, it could also be argued that the Mill’s doctrine of liberty also include unqualified speech rights. As Mill declares that: ‘No society in which these liberties are not, on the whole, respond, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.” Daniel Jacobson has argued that the Mill’s concept of liberty which includes unqualified speech rights is itself in trouble with the harm principle from where it has been derived.
Mill’s theory is not immune from criticism. One such criticism is that Mill’s harm principle is too weak as well as too strong. Mill has divided the actions into two types, self-regarding actions which deal only with the part of person’s life concerning himself and that which deals with others is called other-regarding action. According to Daniel Jacobson, this distinction of actions is the main reason for claiming Mill’s harm principle as too weak to support the doctrine of liberty. Moreover, it has also been criticized that Mill’s harm principle is very permissive of interference which ultimately does not support fully the doctrine of liberty, because almost all actions can affect others, unlike to Mill’s view that there are such acts which does not affect other persons. Accordingly, it has been argued that if we have only few self-regarding acts, then it is contrary to the doctrine of liberty and it cannot be claimed that the doctrine of liberty has a substantial value and sphere in the world and there can be very small sphere of liberty. However despite all the criticism and shortcomings in his work, Mill still seems to have influenced the modern understanding of freedom of speech, at least in the west.
Considering ‘harm to the rights of other’ as the only restriction on free speech, Mill seems to have been adding something else to it, as he proceeds. ‘Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offences against others, may rightly be prohibited.’ Thus to some extent he retracts from his earlier position of holding the harm principle as the only restriction, now he would go for some sort of morality, manners, public good and offence. Similarly Joel Feinberg has also discussed this topic in his book and he has divided harms into public and private harms. According to him, some conducts may cause harm to the public, society, state, public institutions, economy, climate etc, which may be termed as ‘public’ but it must also be kept in mind that public is generally composed of private individuals. Therefore, Joel Feinberg argues that state can interfere with the citizen’s conducts to prevent harm when it is necessary as well as effective and it can be morally justified on these grounds. From the above statement given by Mill it is sufficient to prove that there can be no single exception to the freedom of speech.
The Offence Principal:
Joel Feinberg is said to be one of the pioneers of this principle. According to him the harm principle is so narrow that speech which would cause damage will escape prosecution, if we apply the harm principle alone. He states that offence takes place when three criteria are present. Thus one is offended when:
One suffers a disliked state;
One attributes that state to the wrongful conduct of another;
One resents the other for his role in causing one to be in that sate.
Feinberg holds that although offence is a less serious thing than harm, and ignores the possibility that psychological offences might amount to physical harm, with the same serious effects. However, his in not against the Mill’s harm principle and is of the opinion that sometimes we may need the harm principle along with the offence principle.
From the liberal’s point of view, this theory is seen as a step towards censorship of speech, as it narrows down the scope of free speech. The main objection towards this theory is the vagueness of term ‘offence’. Whether it means disgust, shame, anxiety, disappointment or something else? It would not be proper to term every person to be offended if he or she feels an uncomfortable situation or a state of disappointments. This principle is difficult to apply because many people take offence as the result of an overly sensitive nature or because of unfair prejudice. For instance some people can be deeply offended by speeches that others find mildly humorous. As commented by Raphael Cohen-Almagor:
‘‘If the offence principle is broadened to include annoyance, it becomes too weak to serve as a guideline in political theory, for almost every action can be said to cause some nuisance to others. Cultural norms and prejudices, for instance, might irritate some people. Liberal views may cause some discomfort to conservatives; conservative opinions might distress liberals. Some, for instance, might be offended…by the sight of black and white people holding hands. This is not to say that these sorts of behaviour should be curbed because of people who are ‘over sensitive’ to gender or interracial relations.”
To his theory of offence principle, Feinberg attaches three conditions for determining the seriousness of offensiveness: ‘the extent of offensive standard’, ‘the reasonable avoid-ability standard’ and ‘the volenti standard’. According to them, a speech will not be termed as offensive, if the audience has consented voluntarily to remain and listen to it, despite the chance to avoid it without facing a reasonable disappointment. These standards are again subject matter of controversy. In the issue of Salman Rushdie, it was perhaps this theory and the conditions attached to the offence principle that British Muslims protesting against the publication of the ‘Satanic Verses’ were criticized and advised that if there is any offensive material in the book for Muslims, they can reasonably avoid it by just ‘not reading it’. In an article published in the ind
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