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1075FREEDOM OF EXPRESSION AND ITS LIMITATIONS: CERTAIN THEORETICAL AND PRACTICAL ASPECTS
Aram Aramyan
Introduction
No known society anywhere has ever adopted a standard of entirely absolute free speech. According to nearly all free speech scholars, freedom of speech has been understood to have limits. Even in today’s liberal democracies there is no idea of unconditional free speech. Almost all freedom of speech scholars and philosophers, except very few in the United States, emphasize that freedom of speech is not absolute, neither in theory, nor in practice* 1. Although they all agree on the importance of free speech for discovering the truth, fostering individual self-fulfillment and self-realization and maintaining democracy, they also argue that words can wound and believe that unlimited free speech might prove counter-productive, spreading false statements, destroying democracy, allowing intolerance to flourish, and offending people’s dignity and respect. [1, p. 37] The following discussion therefore is not to argue whether freedom of speech is absolute or not, whether it should be restricted or not. The question posed is how much speech should be restricted, by what standards, and by what means?
We will split our discussion in two parts: the limitations found in theory and limitations in practice.
' Post-graduate student, Russian-Armenian (Slavonic) University.
1Siegel, S, "The Death and Rebirth of the Clear and Present Danger Test", 2007, p. 42. Available at SSRN: http://ssrn.com/abstract=964553
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1. limitations in theory
The wide variety of opinions stem from two major schools of thought and their opposing standards for restricting of free speech, standards often referred to as the standard of “harm” and the standard of “offence”. One of the philosophers primarily associated with the “harm” principle is John Stuart Mill, who in his famous work On liberty argues: “The only purpose for which power can be rightfully exercised over any member of civilized community, against his will, is to prevent harm to others” [2, p. 86].
Another school of thought holds that speech, which causes “offence”, should also be subject to restriction of law, at least in some contexts and situations. According to this standard some classes of speech should be regulated for the reason of their offensiveness alone.
1.1 The Haim Principle
The harm principle, in fact, is the most liberal theory that defends free speech, though it simultaneously constitutes a justification for limiting free speech1. In On Liberty, Mill emphasized that freedom of opinion and sentiment should exist in society for everyone, [2, p. 76] on every subject matter, "practical or speculative, scientific, moral or theological" ... "however immoral it may be considered" [2, p. 71]. Even if a person is alone against the whole mankind in adopting certain opinions, even if he/she crosses the social red lines and discusses moral, political, or religious matters, and even if a person's opinion is shocking, unorthodox, or heretical, and false, all these do not provide a ground for prohibiting such speech "[T]he only purpose for which power can be rightfully exercised
1 Van Mill, David, "Freedom of Speech", The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.),http://plato.stanford.edu/archives/spr2015/entries/freedom-speech/>.
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over any member of a civilized community, against his will, is to prevent harm to others," Mill says [2, p. 86]. Only in this case, according to Feinberg, Mill believes in society's need for some rules of conduct that regulate the words of a member of a political society [3, p. 11]. In other words, speech should be free until it unduly harms someone else [2, p. 86].
Mill applies this principle in a far broader context than speech, of course, but he applies an especially strict scrutiny to the claims of harm with relation to speech, and argues that nearly every manner of speech ought to be outside the regulation of law. As such, Mill is favorite among more ‘liberal’ participants in the speech debate. As one auther asserts, “the limits on free speech will be very narrow because it is difficult to support the claim that most speech actually causes harm to the right of others” [5, p. 4].
However, several criticisms have been directed to Mill’s harm principle [6, pp. 109-194]. Some view Mill’s principle as too broad because speech is ‘only words’, it cannot harm, thus free speech should be unlimited [7, pp. 220-224]. Others believe that the harm principle is too narrow, and suggest that the harm principle can be defined in a less stringent manner than Mill’s formulation, consequently, more options might become available for prohibiting hate speech and violent pornography. This party claims that the harm principle should include within its scope psychological harm to others, as it includes physical harm, “just as we view the infliction of physical pain as a wrongful deed, seeing it as the right and the duty of the state to prohibit such an infliction”. As Raphael Cohen-Almagor suggests, there are grounds for abridging expression not only when the speech is intended to bring about physical harm, but also when it is designed to “inflict psychological offence”.
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Though some of these criticisms are reasonable, regardless of that the principle is still considered by many, if not by nearly all authors, as one of the most influential theories in designing the boundaries for freedom of speech [4, p. 3]. In fact, there is no controversy about this fact, but the controversy arises, as Feinberg says, when we consider whether it is the only valid liberty-limiting principle, as John Stuart Mill believed [2, p. 86]. Many, contrary to Mill, believe that still there is space for other principles, namely, the offence principle, to play a significant role alongside the harm principle in determining the limits of freedom of speech [4, p. 3]. Most liberal societies rely on the offence principle to regulate certain types of speech.
1.2 The Offence Principle
Many societies, even liberal ones, except to some extent the United States, as study will show, have limitations on some harmless forms such as open lewdness, solicitation, indecency of some exotic kinds, distribution of materials with offensive racial and ethnic slurs, displays of swastikas, Holocaust denial, and some sorts of pornography [3, p. 13]. However, there is considerable doubt whether these can be justified by the harm principle, because certain sorts of unpleasant psychological states are not in theory harms per se. This led some, Joel Feinberg in particular, to adopt another theory that can, beside the harm principle, shoulder all of the work necessary for a principle that has to deal with free speech and set the bar a little lower than in the harm principle [3, p. 15]. They found their quest in an additional principle called the offence principle, which permits the imposition of limitations on speech for its supposed offensiveness, rather than the harm that is caused [5, p. 6]. Unlike the harm principle, it is not necessary for speech to set back our interests, for it to be prohibited under
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the offence principle. The result of balancing between the seriousness of the offensiveness and the reasonableness of the offending conduct, which might be very complex and uncertain, will determine whether the speech at issue is subjected to offence principle or not [3, 26]. For instance, when the motive of the speaker is merely malicious or spiteful, the offense speech canon be reasonable in the eyes of law, or the reasonableness of the offensive speech here has less value on the balancing scale [3, p. 41].
2 Limitations in practice
While the previous section was a theoretical examination of freedom of speech boundaries, the following part concerns the reality of limitations on free speech provisions in international law context, as well as distinguishing the U.S. system, which stands differently. We will examine limitations prescribed by ICCPR, ECHR and the U.S. law within the context of speech protected by these systems.
2.1 The U.S. system
In the United States, the First Amendment to the U.S. Constitution ultimately governs freedom of speech. According to it “Congress shall make no law... abridging freedom of speech”. But contrary to the situation in international law of free speech, there is no determination in the First Amendment’s text about the legal boundaries of freedom of speech.
The Supreme Court has many times expressed that freedom of speech as protected by the First Amendment is not absolute1. No justice according to Wallace Mendelson, “has ever suggested that freedom of speech means freedom to
1 See Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942);
https://supreme.justia.com/cases/federal/us/315/568/case.html Schenck v. United States, 249 U.S. 47 (1919), https://supreme.justia.com/cases/federal/us/249/47/#annotation; Whitney v. California, 274 U.S. 357 (1927), https://supreme.justia.com/cases/federal/us/274/357/case.html
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say anything that one might choose at any place.” [8, p. 28]. As an attempt to set a rule that can be considered as reference to determine when speech should not benefit from freedom of speech protection, the Supreme Court in the United States has established several judicial tests that determine the scope of free speech [9, p. 1-8]. Various justices have applied limiting judicial tests to the right of speech, namely, the categorical approach (which identifies specific forms of speech that are subject to regulation); the “bad tendency” test (any expression that had a tendency to lead to substantial evil should restricted); the “clear and present danger test” (a government may punish speech “that produces or is intending to produce a clear and imminent danger that it will bring about forthwith certain substantive evils”; the “preferred position” test (which places speech in a position of prominence but acknowledges that free speech is not absolutely free); and the balancing test (which recognizes that when other rights conflict with the right to free speech the competing rights should be balanced to determine which has priority) [10, p. 13].
The methodology that the U.S. Supreme Court has adopted, the categorical approach is very different from the corresponding methodology used by both HRC and ECtHR which adopted the balancing approach. The balancing of interests test begins by identifying the societal and personal interests implicated by the legal conflict and assigning differing weights to those interests based on their varying importance to social and individual flourishing1. Balancing-of-interest jurisprudence, thus, resolves legal conflict by allowing the more important interests to prevail over the less important, or by allowing each interest to prevail to an appropriate extent [11, p. 1352]. In contrast to the balancing test, the cate-
1 Siegel, S, "The Origin of the Compelling State Interest Test and Strict Scrutiny." August 2006, p. 4 URL: http: //ssrn.com/abstractX34795
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gorical approach is often referred to as a judicial test set by the Supreme Court of the U.S. in order to determine the scope of free speech protection “by reliance on broad and abstract classification of protected or unprotected speech.” [12, p. 673]. This approach, according to Joshua Cohen, singles out a small set of categories of speech in the First Amendment, for example child pornography, obscenity, fighting words, and express incitement, for lesser protection, specifying conditions for permissible regulation of expression in each category [13, 214]. It is based on the idea of dividing speech activity into categories of protected speech and non-protected speech, and then sub-dividing protected speech into categories [14, p. 7].
Apart from that, it is important to mention the clear and present danger test. The US Supreme Court has set the clear and present danger standard in Schenck v. United States in order to judge when the right to free speech may lawfully be regulated. Justice Holmes in Schenck illustrated the standard by arguing that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”1 This is because such speech constitutes a “clear and present danger” to public safety. Various formulations of the clear and present danger test, such as Schenck test (1919), its successor, Dennis test (1951) and Brandenburg test (1969) up to the present, have appeared in several significant Supreme Court decisions throughout the years [15, pp. 637-651].
2.2 bitemational Law
International human rights law because of its fundamental role in underpinning
democracy among the most important of the rights guarantees freedom of
1 Ibid, Schenckv. United States, 249 U.S. 47 (1919).
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speech. The ICCPR1, taking the wording of the Universal Declaration2 almost intact into its Article 19, provides: “Everyone shall have the right to freedom of expression.” However, freedom of expression, according to this article, is not an absolute right. Paragraph 3 stated that: 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 he 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 (ordre public), or of public health or morals3.
This means international law, in contrast to American law, does not expressly permit some restrictions on the right to freedom of expression and information in order to protect the private and public interests listed in paragraph 3 of Article 19 of ICCPR. In the interpretation of this language the Human Rights Committee has stated “It is the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of individual’s right”4 The Human Rights Committee in its General Comment 10 noted also that permissible restrictions on the right to freedom of expression “may relate either to the interests of other persons or to those of the community as a whole.”5 However, the right is further qualified by Article 20,
1 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
2 Universal Declaration of Human Rights, proclaimed by he United Nations General Assembly in Paris on 10 December 1948, http://www.un.org/Overview/rights.html
3 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
4 General Comment No. 10: Freedom of expression (Art. 19) 29/06/1983. http://www.ohchr.org/Documents/Issues/Opinion/CCPRGeneralCommentNo10.pdf
5 Ibid.
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which prohibits war propaganda, incitement to violence and certain forms of hate speech. ICCPR here provides a compulsory restriction on this type of speech [16, p. 517].
Similar to ICCPR, in the context of the ECHR1, freedom of expression may be subject to limitations prescribed by law. The European states, while designating Article 10 of the Convention, perceived a need to delimit the scope of rights that, if taken literally, would have unlimited breadth, and thus they paid careful attention to the need to design the rights so as simultaneously to ensure their effective protection and also to provide appropriate breathing room for multiplicity of important interests2.
Paragraph (2) of Article 10 reads: “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.”3
It can be said, that freedom of expression in the international law is classic qualified right which should be balanced with other competing interests. This means that, unlike the law of freedom of expression in the U.S., the ICCPR and the ECHR do not adopt “the categorization approach”. Under the ICCPR and
1 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, http://www.echr.coe.int/Documents/Convention_ENG.pdf
2 Schauer, F, "Freedom of Expression Adjudication in Europe and America: A Case Study in Comparative Constitutional Architecture," (2005), p. 17, available at URL htttp://ssrn.com/abstract668523>
3 Universal Declaration of Human Rights, proclaimed by he United Nations General Assembly in Paris on 10 December 1948, http://www.un.org/Overview/rights.html
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ECHR, there is an explicit authorization of a process of balancing the interest in freedom of speech against other countervailing interests1. For example, in the context of ECHR, the balancing methodology is contained directly in Article 10 (2), which precedes the foregoing list approved countervailing interest with the statement that freedom of expression “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.” The ECHR adopted and employed an explicit balancing test under Article 10 in Sunday Times v. United Kingdom2.
However, this does not mean the international law of free speech opens the gates widely for states to limit the right of freedom of expression. Limitations of this right must meet a strict test of justification3. The Human Rights Committee has consistently said that any restriction imposed on the right of freedom of expression must be required for the purpose of safeguarding one of the legitimate interests noted in Article 19(3)4. These limits to freedom of expression are subject to two overriding principles. First, the limits must be “prescribed by law”. This means that the limit must be clearly spelt out in a law. The limiting law must satisfy certain characteristics – it must be accessible, sufficiently circumscribed and clearly predictable in application. Secondly, the limit must also be “necessary”. This imports the notion of proportionality. The limiting measure must be “necessary to achieve one of the aims in 19(3) (a) and (b).5
1 Ibid, p. 6.
2 The Sunday Times v. United Kingdom (No 1) 6538/74 [1979] ECHR. http://hudoc.echr.coe.int/eng?i=001-57584
3 Kim v. Republic of Korea. CCPR/C/64/D/574/1994, https://www1.umn.edu/humanrts/undocs/session64/view574.htm
4 Wornah Mukong v. Cameroon, CCPR/C/51/D/458/1991, http://www1.umn.edu/humanrts/undocs/html/vws458.htm;
Pietraroia v. Uruguay, 44/1979, http://www1.umn.edu/humanrts/undocs/html/44_1979.htm
5 Universal Declaration of Human Rights, proclaimed by he United Nations General Assembly in Paris on 10 December 1948, http://www.un.org/Overview/rights.html
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What can be said about ICCPR, the restrictions on freedom of expression must pass the so-called three-part test, which can also be said in reference to ECHR. The balancing inquiry described in Sunday Times is three-tiered: failure at any tier renders the restriction unlawful under the Convention1. First, the court must ask whether the interference was “prescribed by law.”2 If so, the inquiry turns to whether the interference had aims that are “legitimate under Article 10 (2).”3 Finally the court asks whether the interference was “necessary in a democratic society.”4 The last test proves to be the most hard for the court to assess positively. The adjective “necessary” implies the existence of a “pressing social need.”5 Where the Court finds that all requirements are fulfilled, the State’s interference will be considered legitimate. The burden to prove that all requirements are fulfilled stays with the State. The Court examines the three conditions in the order provided above. Once the Court finds that the State fails to prove one of the requirements, it will not give the case further examination and will decide that the respective interference was unjustified and therefore, freedom of expression violated [17, p. 23].
Conclusion
What the above points demonstrated is that in contrast so seeming absoluteness of the First Amendment, international law of freedom of expression differs from the American law in the presence of the explicit listing of various qualifications
1 General Comment No. 10: Freedom of expression (Art. 19) 29/06/1983. http://www.ohchr.org/Documents/Issues/Opinion/CCPRGeneralCommentNo10.pdf
2 Ibid.
3 Ibid.
4 Ibid.
5 Handyside v. United Kingdom, 5493/72 [1976] http://hudoc.echr.coe.int/eng?i=001-57499
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or exceptions to the right. It has been also demonstrated that the structure of free speech clauses in American free speech law differs from the structure of freedom of expression in ICCPR and ECHR. The tendency at the international level especially after the World War II has been away from abstract statement, towards more detailed formulations of freedom of speech. This leads to a conclusion that demand for an absolute status for freedom of speech, which is confined basically to systems with no literal restrictions clause, such as America’s First Amendment, does not arise with the ICCPR and ECHR, which include explicit limitations on the speech. The divergence between American law and the system in international level in the field of freedom of expression extends to the methodology of restricting freedom of speech. While the American free speech adjudication is obsessed with categorization, the international law of freedom of speech, as the above discussion revealed, inclines to balance freedom of expression interests against other social values.
November, 2015
References and Literature
1. Sadurski, W, Freedom of Speech and its Limits (London: Kluwer Academic Publishers, 1999)
2. Mill, J, On Liberty (1859), edited with an introduction by Gertrude Himmelfarb (London: Penguin, 1982)
3. Feinberg, J, Offence to Others (New York: Oxford University Press, 1985)
4. Feinberg, J, Harm to Self (New York: Oxford University Press, 1986)
5. Mill, D, "Freedom of Speech", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition)
6. Harcourt, B, "The Collapse of the Harm Principle", Journal of Criminal Law and Criminology, 90.1 (1999)
7. George Kateb, "The Freedom of Worthless and Harmful Speech" in Bernard Yack (ed) Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar (Chicago: University of Chicago Press.1996)
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8. Mendelson, W, "Black, H., and Judicial Discretion." Political Science Quarterly, 85.1 (1970)
9. Gates, H, "Truth or Consequences: Putting Limits on Limits, in The Limits of Expression in American Intellectual Life", ACLS Occasional Paper, No. 22-New York: American Council of Learned Societies, 1993
10. Hemmer, J, " Hate Speech Codes: A Narrow Perspective", The North Dakota Journal of Speech & Theatre (2000)
11. Heyman, S, "Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression", Boston University Law Review (1998)
12. Schlag, P, "An Attack on Categorical Approaches to Freedom of Speech", UCLA L. Rev. 30(1983)
13. Cohen, J., " Freedom of Expression", Philosophy and Public Affairs (1993).
14. Trager, R, and Donna Dickerson, Freedom of Expression in the 21" Century (Pine Forge Press, 1999).
15. Latham, E, “The Theory of the Judicial Concept of Freedom of Speech”. The Journal of Politics, 12.4 (1950)
16. Joseph, S, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: cases, materials, and commentary, 2nd edn (Oxford: Oxford University Press, 2004).
17. Macovei, M, Freedom of expression. A guide to the implementation of Article 10 of the European Convention on Human Rights, 2nd edn (Human rights handbooks, no. 2., Council of Europe, 2004)
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