‘Freedom of speech’ could be defined as the ability to articulate, mention and categorise elements of opinion or fact without having the fear of retaliation, censorship or legal sanction from another party. This freedom is extended with the ‘freedom of expression’, which covers the freedom of seeking and receiving information. These rights are covered under multiple bodies, such as Article 19 of both the UNHR and ICCPR, however the latter body adds special duties to these rights, including the duty to respect others and to protect the state security and morals. In assessing whether there should be any limitations on the freedom of speech, understanding what this freedom entails is imperative and whether there should be any limitation and why that may be on this freedom. For this, it is crucial to take into account the ideas of Joel Feinberg, Alexander Meiklejohn, Thomas Emerson, John Stuart Mill, Bernard Harcourt, David Irving, Deborah Lipstadt, Rachael Jolley, John Locke and John Milton. Ultimately, it could be argued that there should be a number of limitations on the freedom of speech, however these limitations should be closely monitored and updated to match the consensus of the community around us.
To gain a greater insight to the history of freedoms, we must examine the work of both John Milton and John Locke. John Milton was a British poet who published a text titled ‘Areopagitica’ in 1644 which opposed licensing and censorship, thereby providing a defence to the principle right of freedom of speech and expression. Additionally, Locke, a British philosopher, though followed the social contract theory introduced by Hobbes in ‘Leviathan’, felt that human nature is characterised by reason and tolerance. As a consequence of this, Locke put forward three ‘inalienable’ natural rights, which are God-given and cannot be taken or given away, including ‘life, liberty and property’. These three rights arguably form the basis of freedom of speech because the basis of life and liberty could be said to be that of being able to openly communicate opinions for the basis of enlightening discussion. Without it, humans would be restricted to the speech which have been prescribed, ordinarily by politicians, and therefore cannot deviate from it without consequence. Additionally, this freedom may be seen within the First Amendment (from ten in the Bill of Rights) of the United States Constitution, which prevents laws overtly regulating the establishment of religion, freedom to exercise religion, freedom of speech, amongst other freedoms.
However, though the First Amendment may include these inalienable rights, there are certainly unprotected instances where speech may lead to criminal or civil liability. This includes instances of obscenity, fraud, child pornography, speech inciting or causing imminent lawless action, true threats and speech violating intellectual property law. These instances have been integrated into the law of the land as a result of the general consensus in the wrongness of such instances. For instance, false statements of facts which include relevant libel and slander laws exist, preventing the purposeful damaging to a person’s public reputation, thereby showcasing an instance to which the freedom of speech may be overruled by the right to privacy and the right not to be defamed by false statements. Additionally, the ‘offence principle’, introduced by Joel Feinberg, allows for the restriction of offensive expressions. This may be seen to be used by a variety of countries, such as Russia, which uses the harm principle to justify their LGBT propaganda law, which aims to protect kids from being exposed to homosexuality, a sexual orientation which contradicts traditional familial norms, resulting in possible criminal prosecution. Indeed, many central European states, such as Austria, has outlawed instances of Holocaust denial, which takes the form of denying the mass extermination of Jews under the Third Reich. For instance, David Irving was prosecuted in 1989 due to the denial he propagated during a lecture to a group of far right students while in Austria. Consequently, these examples may be seen to exemplify instances where the harm principle may be utilised to prevent speech which perhaps could cause disturbance in the public atmosphere of a state.
Justified these limitations may be, there still have been many individuals who pushed the boundaries of logic in determining the extent to which free speech should be granted. For example, John Stuart Mill argued that full liberty to discuss anything regardless of immorality is necessary to push the extent of human reasoning and logic. Moreover, Bernard Harcourt argued that the harm principle does not deal with the relative importance of harms, meaning that harm could be magnified of certain occurrences within particular states to justify its illegality. This can easily be seen with Russia’s LGBT propaganda law, which contrasts to the freedom of sexual orientation within countries such as France and the United Kingdom. Further to this, the United Kingdom rejected laws which prevented Holocaust denial, allowing discussions of a hostile nature to be waged. Though limitations continue to be imposed, Alexander Meiklejohn argues for the link between freedom of speech and democracy, as an informed electorate is necessary to allow for fully informed decisions to be made when making political decisions. This means that perhaps certain limitations should be relaxed in allowing citizens to maintain the right for full access to information imperative in making law-altering decisions.
What Meiklejohn envisioned in the enveloped nature of both free speech and democracy may be seen as a justification for the political state of China, which continues active internet censorship, including over sixty online restrictions, preventing the news coverage of controversial events, such as the 1989 Tiananmen Square protests. This prevents an absolute arena of democracy from being produced within such a state due to such limitations. As a resultant, it could be argued that though certain limitations for the general good of the public may be advocated for regularly, certain other limitations arguably should be overruled. To exemplify, the additional limitations of freedom of speech within states such as Russia and China seem to prevent the full access of information to citizens of such states, preventing them from exercising complete freedom of expression, an infallible component of speech. This allows room for the argument to be made that certain limitations have been imposed within certain territories, using the harm principle as a justification, in order to prevent the political arena from being overshadowed by the consequences of truth. This leads to the clear disparity between states such as China and the United Kingdom, as the limitations afforded to citizens of one appear to be far greater than the limitations of the other. Indeed, limitations such as the restriction of expressing imminent intentions of illegality and possession of child pornography may be seen as limits served to protect the people, whereas the limits imposed by more authoritarian states seem to be more interested in protecting the government. Such differences in limitations within states must be acknowledged in arriving at the conclusion that certain limitations may be justified, while others may find a more difficult route to reason. This argument may be supported by the thoughts of Deborah Lipstadt, who argued that politicians should not decide what can and cannot be said, along with the ideas of Rachael Jolley, who argued that free speech is important for social change, such as universal suffrage, which was afforded to citizens of the United Kingdom in 1928.
Essentially, it may be argued that though certain limitations should be in place to protect the people from dire circumstances, such as violence resulting in murder, or child pornography causing the sexual exploitation of minors, this does not afford the government the right to impose any limitations, such as the restriction of free flow of information arguably necessary in gauging political stances and perspectives.
Ammar Hammad Khan 