Reference no: EM133316517

Freedom of expression 

Freedom of expression is often regarded as the most important civil liberty or constitutional right because of its role in the working of an effective democracy. Without freedom to debate political issues, a liberal democracy would soon degenerate into an authoritarian state. But there are other justifications for freedom of expression, notably John Stuart Mill's argument that it enables the discovery of truth and social progress, and the argument that it is essential to the self-fulfilment of individuals. The term 'freedom of speech' has generally been used in the common law, and is also used in the First Amendment to the US Constitution: 'Congress shall make no law ... abridging the freedom of speech, or of the press...'. But the European Convention on Human Rights ('ECHR') and other international instruments guarantee the 'right to freedom of expression'. Article 10(1) of the ECHR, now part of United Kingdom law under the Human Rights Act 1998, provides that the right includes 'freedom to hold opinions and to receive and impart information and ideas without interference by public authority...'.

Freedom of expression (or speech) obviously includes the right to disseminate information and ideas verbally, in writing, or by other means of communication, such as broadcasting and the new electronic media. One aspect of the freedom is press freedom or media freedom. Some forms of expressive conduct, such as desecration of a national flag or the burning of a draft or identity card in protest against the government, may be treated as an exercise of freedom of expression. But apart from those cases, the distinction between expression and conduct is important. It would be wrong to treat an act of violence, for instance, as an exercise of freedom of expression, even though the perpetrator intended to communicate a message in this way.

Freedom of expression is primarily a liberty against state interference. It does not confer positive rights, for example, that the state provide premises for speech or subsidize, say, the theatre or art exhibitions. Nor does the right to receive information and ideas, recognized by the ECHR, give members of the public a right to compel a public authority to provide it. That right is often conferred by a freedom of information law, but it is quite distinct from freedom of expression. However, a few positive rights are recognized, for example, the right of candidates to use public halls for election meetings. Freedom of expression is particularly strongly guaranteed against censorship, often described as 'prior restraint' because it is applied prior to publication. This applies most clearly in the case of the print media and theatre; press censorship was abolished in England as long ago as 1694, although scrutiny of stage plays existed until 1968. But censorship of films and videos by independent agencies still exists in the United Kingdom and in many other countries, particularly to stop the showing of unsuitable matter to children.

Political speech lies at the heart of the freedom, and is the type of expression most strongly protected against the restrictions imposed by either criminal or civil law. Consequently, courts are reluctant to uphold limits on the expression of views on any matter which engages the attention of the public, whether it is an issue of electoral and political debate or one of general social concern-for example, whether the abortion laws should be relaxed or tightened. But freedom of expression in many jurisdictions has been extended far beyond the realm of political speech. It may include literature, artistic expression (including painting and other works of art), pornography, and commercial speech (including advertising). But extreme hard-core pornography is generally not regarded as 'expression'; so a law can ban or restrict its dissemination without the prospect of a legal challenge that it contravenes the freedom. Also excluded from the scope of freedom of expression are those types of speech which have no value at all: blackmail, bribery, perjury, and direct incitement to someone to commit a specific crime. Equally, statements made during the course of commercial or other transactions are not covered by freedom of expression: contractual promises, representations inducing a contract, or the exchange of marriage vows.

It is unusual to treat freedom of expression as an absolute right, although the First Amendment to the US Constitution, on a literal understanding of its words, appears to preclude any abridgement of the freedom by Congress. Even in the United States where freedom of speech is very strongly protected, exercise of the right may be limited, provided the restriction is necessary to protect some vital public interest. The ECHR allows states to impose restrictions on the exercise of freedom of expression, provided they are necessary to further one of the stated aims, for example, national security, public order, morality, the reputation and rights of others, and the authority of the courts. But they cannot penalize expression on the ground either that it communicates shocking or offensive ideas or that it uses unpleasant or vulgar language. Freedom of expression gives speakers the right to choose their own vocabulary.

In most countries, including the United Kingdom, the law imposes significant restrictions on expression. For example, it is generally an offence to disclose official secrets; courts will rarely uphold an argument that official secrets statutes infringe freedom of expression. Other restrictions are imposed by criminal laws penalizing sedition, blasphemy, obscenity, contempt of court, and the encouragement of terrorism. Sometimes it is successfully argued that these laws, or their application to the particular circumstances, infringe exercise of the freedom of expression, so that the speaker or publisher cannot be prosecuted. Courts are very sympathetic to that argument when the publication concerns a matter of political or social controversy, but much less so if the publication is, say, pornographic. One matter of great controversy now is whether laws penalizing hate speech-a publication intended or likely to stir up hatred against a racial or religious group-should be upheld or whether they infringe freedom of expression. These laws would be regarded as infringing freedom of speech in the United States, but in the United Kingdom and Europe are usually considered compatible with freedom of expression. Holocaust denial is not proscribed in the United Kingdom, but it is in France, Germany, and some other countries.

Other restrictions are imposed by the civil law, in particular the law of libel and laws protecting personal privacy. In these circumstances, freedom of expression has to be balanced against the competing rights of individuals to safeguard their reputation or privacy. In the United States greater importance is attached to the former; under the rules established by the Supreme Court in New York Times v Sullivan (1964) and subsequent decisions, public officials and figures can only win a libel action if they prove that the libel was published with knowledge that it was false or with indifference to whether it was true or not. In contrast UK courts treat freedom of expression on the one hand, and the right to reputation or privacy on the other as equally important; neither right has pre-eminence. Freedom of expression will prevail if the particular publication has great importance because it concerns, say, politics, rather than celebrity gossip. In contrast to their approach in privacy cases, the courts attach little importance to broad freedom of expression arguments in copyright and other intellectual property cases; when a reporter or satirist infringes copyright, he or she must argue that the infringement was covered by a specific statutory defence in order to avoid liability.

In addition to the restrictions imposed by law, the exercise of freedom of expression may be limited by the rules of a professional association. These rules significantly restrict commercial or professional advertising, a type of expression which enjoys less protection than political or literary discourse. Employers, school, and university authorities may impose tighter restrictions on the expression of their staff or students than those imposed by the law. An employee, for instance, may be disciplined if he comments adversely on the conduct of his employer, even though the comments concern a matter of public importance such as the management of a hospital. Freedom of expression arguments sometimes succeed in such contexts; but speech at work or on a university campus does not usually contribute to general debate and it is therefore reasonable to give it less protection than public discourse.

The scope of freedom of expression has widened considerably over the last few decades; it covers much more than the expression of opinion on topics of political interest. For example, it has been argued, sometimes successfully, that restrictions on nude dancing or on the amount of money that can be spent on election campaigns engage freedom of expression. The same argument was made when the government denied the leader of a militant organization permission to enter the country. As a result, freedom of expression law is now far from simple; with the ingenuity of civil liberties lawyers, it is likely to become even more complex.

After reading above, address the following question:

Question: Explain why you feel the concept "Freedom of speech" is important. Your answer should be in the form of a short answer, complete with an opening paragraph, thesis statement,  and conclusion. Cite something from the above.