Freedom of speech

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. The right is enshrined in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with relatively authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms (see propaganda model) and there are different approaches to issues such as hate speech, obscenity, and defamation laws even in countries seen as liberal democracies.

International law

The United Nations Universal Declaration of Human Rights, adopted in 1948, provides, in Article 19, that:

Everyone has the right to opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Technically the resolution of the United Nations General Assembly rather than a treaty and so it is not legally binding in its entirety, on members of the UN, and, while some of its provisions are considered to form part of customary international law, there is dispute as to precisely which provisions do so. Freedom of speech is granted unambiguous protection in international law by the International Covenant on Civil and Political Rights which is binding on around 150 nations. Article 19 provides that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. 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 be 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 morals.

The right is further qualified by Article 20 which prohibits war propaganda, incitement to violence and certain forms of hate speech. In adopting the Covenant the Republic of Ireland, Italy and Luxembourg insisted on reservations to Article 19 in so far as it might be held to affect their systems of regulating and licensing broadcasting ^[1]. A number of state parties also have official reservations to Article 20.

Australia

Australia does not have a bill or declaration of rights; however, in 1992 the High Court of Australia judged in the case of Australian Capital Television Pty Ltd v Commonwealth that the Australian Constitution, by providing for a system of representative and responsible government, implied the protection of political communication as an essential element of that system. This freedom of political communication is not a broad freedom of speech as in other countries, but rather a freedom whose purpose is only to protect political free speech. This freedom of political free speech is a "shield" against the government - and the government only - it is not a shield against private interests. It is also less a causal mechanism in itself, rather than simply a boundary which can be adjudged to be breached. Despite the court's ruling, not all political speech appears to be protected in Australia, and several laws criminalise forms of speech that would be protected in other democratic countries such as the United States. In 1996, Albert Langer was imprisoned for advocating that voters fill out their ballot papers in a way that was invalid.^{[citation needed]} Amnesty International decllared Langer to be a prisoner of conscience.^{[citation needed]}

The Australian government is currently trying to pass amendments to several laws, to give counter-terrorism agencies more power. At least one of the amendments has come under a large amount of public scrutiny, the amendments to the Crimes Act 1914, and the Criminal Code 1995 to change the way the crime of sedition is handled. Many have decried this as an attack on the freedom of speech of Australians, and many claim it is entirely unnecessary. Mediawatch has been running a series on the amendments on ABC television, and more information is available on vicpeace.org

Africa

The majority of African constitutions provide legal protection for freedom of speech. However, these rights are exercised inconsistently in practice. South Africa is probably the most liberal in granting freedom of speech with the exception of the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. [1] Recently, the South African Constitutional Court set an international precedent when it found that the small culture jamming company Laugh it Off's right to freedom of expression outweighs the protection of trademark of the world's second largest brewery.

The replacement of authoritarian regimes in Kenya and Ghana has substantially improved the situation in those countries. On the other hand, Eritrea allows no independent media and uses draft evasion as a pretext to crack down on any dissent, spoken or otherwise. One of the poorest and smallest nations in Africa, Eritrea is now the largest prison for journalists; since 2001, fourteen journalists have been imprisoned in unknown places without a trial. Sudan, Libya, and Equatorial Guinea also have repressive laws and practices. In addition, many state radio stations (which are the primary source of news for illiterate people) are under tight control and programs, especially talk shows providing a forum to complain about the government, are often censored.

Freedom of speech is improving in major oil-producing countries like Equatorial Guinea, Chad, Cameroon, and Gabon.

Asia

Several Asian countries provide formal legal guarantees of freedom of speech to their citizens. These are not, however, implemented in practice in most places. Countries such as Vietnam, Myanmar, Singapore, North Korea and Central Asian Republics like Turkmenistan brutally repress freedom of speech. Freedom of speech has been greatly improved in the People's Republic of China in recent years^{[citation needed]}, but the level of free expression is still far from that of Western nations.

People's Republic of China (mainland)

Article 35 of the Constitution of the People's Republic of China claims that:

Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

Nonetheless strict censorship is widespread in mainland China. There is heavy government involvement in the media, with many of the largest media organisations being run by the Communist government. References to democracy, the free Tibet movement, Taiwan as an independent country, certain religious organizations and anything questioning the legitimacy of the Communist Party of China are banned from use in publications and blocked on the Internet. Web portals including Microsoft's MSN have come under criticism for aiding in these practices, including banning the word "democracy" from its chat-rooms in China. While the television channels in Hong Kong, where more freedom of speech is allowed, are accessible in mainland China through cable television services, comments that the Communist Party feel uncomfortable with are cut out, and replaced with TV commercials. Very few Western films are given permission to play in Chinese theatres, although widespread unlicensed copying of these films makes them widely available.

Hong Kong

Under Basic Law of Hong Kong, article 27, "Hong Kong residents shall have freedom of speech" and article 28 "The freedom of the person of Hong Kong residents shall be inviolable." and section 30 "The freedom and privacy of communication of Hong Kong residents shall be protected by law"[2]

India

The Indian constitution guarantees freedom of speech to every citizen and there have been landmark cases in the Indian Supreme Court that have affirmed the nation's policy of allowing free press and freedom of expression to every citizen. In India, citizens are free to criticize politics, politicians, bureaucracy and policies. The freedoms are comparable to those in the United States and Western European democracies. Article 19 of the Indian constitution states that "all citizens shall have the right ..to freedom of speech and expression".

However, Indian citizens can't criticize supreme court judgments (although they are given the right to challenge the courts decision under legal process). Punishment for that is three month prisonment in jail. Famous novelist, Arundhati Roy, was arrested and charged 2000 Rupees for criticizing court's judgment in the Sardar Sarover case. She was released after she paid the fine.[3]

South Korea

The South Korean constitution guarantees freedom of speech, press, petition and rights to grievances, censored. Speech calling for overthrowing of the government is prohibited and can be punished by the death penalty.^{[citation needed]}

There is currently a controversy over the extent of allowable speech in South Korea due the popularity of homosexuality-depicting manga (yaoi and yuri), as in many East Asian nations homosexuality is considered a disease. Opposition to such speech has been expressed in the Korean Congress.^{[citation needed]}

Europe

European Convention

The European Convention on Human Rights, signed on 4 November 1950, guarantees a broad range of human rights to inhabitants of member countries of the Council of Europe, which includes almost all European nations. These rights include Article 10, which entitles all citizens to free expression. Echoing the language of the Universal Declaration of Human Rights this provides that

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and 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 also includes 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 party to the convention must alter its laws and policies to conform with the Convention, some, such as the United Kingdom and the Republic of Ireland, have expressly incorporated the Convention into their domestic laws. The guardian of the Covention is the European Court of Human Rights. This court has heard many cases relating to freedom of speech, including cases that have tested the professional obligations of confidentiality of journalists and lawyers, and the application of defamation law, a recent example being the so called "McLibel case".

European Union

Currently, all members of the European Union are signatories of the European Convention on Human Rights as well as having varying constitutional and legal protections for freedom of expression at the national level. The Charter of Fundamental Rights of the European Union guarantees freedom of expression but currently merely has the status of a "solemn proclamation" and is not binding in law. Its Article 11, in part mirroring the language of the Universal Declaration of Human Rights and the European Convention, provides that

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

While neither the Convention nor the Charter of Fundamental Rights is technically legally binding, the European Court of Justice takes them into account when making its rulings. Should the Treaty Establishing a Constitution For Europe ever become law the Charter of Fundamental Rights will acquire legal force. The proposed constitution also permits the European Union to accede to the European Convention as an entity in its own right. This is important because, while currently the Convention is binding on the governments of the member states, it is not binding on the supranational institutions of the Union itself.

Denmark

According to Danish national law, this paragraph below states following about unbounded freedom of speech ^[2].

§ 77 Anyone is entitled to in print, writing and speech to publish ones thoughts, however in responsibility of the courts of justice. Censorship and other precluding precautions cannot ever be reimposed.

Traditionally the left-wing parties support freedom of speech but with respect for minorities and avoiding blasphemy. Right-wing parties alternately support full freedom of speech for the citizens almost regardless of motive and subject (racism in public is illegal so it has not been included in the statement). Generally people in Denmark are allowed to say whatever they have in mind, and far most of the majority also thinks it is a basic human right that cannot be removed in any way. However, this has been heavily questioned in the recent infamous cartoon controversy of Muhammad posted by Danish newspaper Jyllands-Posten on September the 30th, 2005. This incident caused massive and violent protests in many Muslim countries all over the world. A popular example of an extreme attitude towards the case is the politics of the Danish People's Party ("Dansk Folkeparti" in native language). Their popularity grew instantly after the threatenings and burnings of Danish embassies in foreign countries. The party fully stood by the fatal posting behind the international crisis, most noticeably leading to economic losses due to boycotts of Danish milk products in Arab countries. Pia Kjærsgaard (the party founder and current leader) furthermore accused top imams of being national traitors ^[3] after their discussed travel to Arabic countries showing off the drawings and creating rage. The imams participating in the journey instead claimed it was not the reactions they had expected, but their only intention was to inform Muslims of what was happening in Denmark and to work up a peaceful solution.

France

The Declaration of the Rights of Man and of the Citizen, of constitutional value, states, in its article 11:

The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, save [if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.

In addition, France adheres to the European Convention on Human Rights and accepts the jurisdiction of the European Court of Human Rights. The right to criticize politicians and the government is cherished and taken for granted by the French population. France has a tradition of political lampooning and satirical writing. Examples of this tendency include the frequent depiction in a popular television program of president Jacques Chirac as a beer-guzzling incompetent, thief and liar.

French law prohibits public speech or writings that incite to racial or religious hatred, as well as those that deny the Jewish Holocaust. Proponents and supporters of these measures allege that they fight against the spread of neo-nazi ideas and a climate of racism; opponents contend that these laws stifle the freedom of speech in France, and make it difficult to engage in the criticism of the practices of some religions, or in the discussion of immigration. The only major party opposed to those laws are the National Front whose leader, Jean-Marie Le Pen, has been a target of them.

In December 2004, a controversial addition was made to the law, criminalizing the prohibition to hatred or violence against people because of their sexual orientation. A law voted on 31 December 1970 created article L. 630 (renamed L. 3421-4) of the Public Health Code, which punishes the "positive presentation of drugs" and the "incitement to their consumption" with up to five years in prison and fines up to €76,000. Newspapers such as Libération and Charlie Hebdo, book shops, associations, political parties, music bands, and various publications criticizing the current drug laws and advocating drug reform in France have been repeatedly hit with heavy fines based on this law.

France does not implement any preliminary government censorship for written publications; plaintiffs have to demonstrate the violation of law in court. However, press publications must have an identifiable director of publishing, and publications directed towards the youth have supplemental obligations. Also, the government has a commission recommending movie classifications, the decisions of which can be appealed before the courts. Finally, the government restricts the right of broadcasting to authorized radio and television channels; the authorizations are granted by an independent administrative authority; this authority has recently removed the broadcasting authorizations of some foreign channels because of their antisemitic content. The 1994 Toubon Law restricts the use of foreign language words in government official publications and commercial speech; it has often been incorrectly described in the English-speaking press as prohibiting English words from all publications and web pages in France.

Restrictions: The law in France as part of “internal security” enactments passed in 2003 makes it an offense to insult the national flag or anthem, with a penalty of a maximum 9,000 euro fine or up to six months' imprisonment. Restrictions on "offending the dignity of the republic," on the other hand, include "insulting" anyone who serves the public (potentially magistrates, police, firefighters, teachers and even bus conductors). The legislation reflects the debate that raged after incidents such as the booing of the “La Marseillaise” at a France vs. Algeria football match in 2002.

Germany

Freedom of expression is granted by Article 5 of the German Basic Law^[4]:

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.

(3) Art and scholarship, research, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

The most important and sometimes controversial regulations limiting freedom of speech and freedom of the press can be found in the Criminal code:

• Insult is punishable under Section 185. Satire and similar forms of art enjoy more freedom but have to respect human dignity (Article 1 of the Basic law).
• Malicious Gossip and Defamation (Section 186 and 187). Utterances about facts (opposed to personal judgement) are allowed if they are true and can be proven. Yet journalists are free to investigate without evidence because they are justified by Safeguarding Legitimate Interests (Section 193).
• Hate speech may be punishable if against segments of the population and in a manner that is capable of disturbing the public peace (Section 130 [Agitation of the People]), including racist agitation and antisemitism.
• Holocaust denial is punishable according to Section 130 subsection 3.
• Dissemination of Means of Propaganda of Unconstitutional Organizations (Section 86).
• Use of Symbols of Unconstitutional Organizations (Section 86a) as the Swastika.
• Disparagement of
  • the Federal President (Section 90).
  • the State and its Symbols (Section 90a).
• Insult to Organs and Representatives of Foreign States (Section 103).
• Rewarding and Approving Crimes (Section 140).
• Casting False Suspicion (Section 164).
• Insulting of Faiths, Religious Societies and Organizations Dedicated to a Philosophy of Life (Section 166)
• Dissemination of Pornographic Writings (Section 184).

Republic of Ireland

Freedom of speech is protected by Article 40.6.1 of the Irish constitution. However the article qualifies this right, providing that it may not be used to undermine "public order or morality or the authority of the State". Furthermore, the constitution explicitly requires that the publication of "blasphemous, seditious, or indecent matter" be a criminal offence.

The scope of the protection afforded by this Article has, to a large degree as a result of the wording of the Article, which qualifies the right before articulating it, been interpreted restrictively by the judiciary. Indeed, until an authoritative pronouncement on the issue by the Supreme Court, many believed that the protection was restricted to "convictions and opinions" and, as a result, a separate right to communicate was, by necessity, implied into Article 40.3.2. This judicial conservatism is at variance with the concept of speech as a democratic imperative. This, albeit trite, justification for free speech has underpinned the liberal, progressive interpretation of the First Amendment by the United States Supreme Court.

Under the European Convention On Human Rights Act, 2003, all of the rights afforded by the European Convention form an integral part of the Republic of Ireland's laws. The act is, however, subordinate to the constitution.

Poland

"Statutes of Wiślica" introduced in 1347 by Casimir III of Poland codified freedom of speech in medieval Poland e.g. book publishers were not to be persecuted. As of 2005, people are sometimes convicted and/or detained for about one day for insults to religious feeling (of the Roman Catholic Church) or to heads of state who are not yet, but soon will be, on Polish territory. On July 18 2003, During January 26-January 27 2005, about 30 human rights activists were temporarily detained by the police, allegedly for insulting Vladimir Putin, a visiting head of state. The activists were released after about 30 hours and only one was actually charged with insulting a foreign head of state. [4] In the December of 2006, a leader of Polish National Party, Leszek Bubel, was sent by force for a psychiatric examination, supposedly on the basis of his antisemitic publications...[5]

Sweden

Freedom of speech is protected by the constitution in "Yttrandefrihetsgrundlagen" (Yttrande=Expression, Frihet=Freedom Grundlagen=Constitution) and freedom of the press due to Anders Chydenius 1766 in the "Tryckfrihetsförordning" (Tryck=Print Frihet=Freedom Förordning=Law). At the same time, the principle that the information inside public offices are public in "Offentlighetsprincipen". This last principle contrasts with the more restricted access to this kind of information in the rest of the EU. Hate speech against a group based on ethnicity, race and creed is prohibited, and since 2002 also against homosexuals. Some notable recent cases are Radio Islam and Åke Green.

Turkey

Article 26 of the Constitution of Turkey guarantees the right to "Freedom of Expression and Dissemination of Thought". Moreover, the Republic of Turkey is a signatory of the European Convention on Human Rights and submits to the judgments of the European Court of Human Rights. The constitutional freedom of expression may be limited by provisions in other laws, of which Article 301 of the Turkish Penal Code, which outlaws insulting Turkishness. Speaking of the Armenian Genocide is also prohibited.

United Kingdom

In 1998, the United Kingdom incorporated European Convention, and the guarantee of freedom of expression it contains in Article 10, into its domestic law under the Human Rights Act. UK law imposes a number of limitations on freedom of speech not found in some other jurisdictions. For example, its laws recognise the crimes of incitement to racial hatred and incitement to religious hatred. UK laws on defamation are also considered among the strictest in the Western world, imposing a high burden of proof on the defendant.

UK defamation law may have recently experienced a considerable liberalising effect as a result of the ruling in Jameel v Wall Street Journal in October 2006. A ruling of the House of Lords - the highest UK court - the ruling revived the so-called Reynolds defence, in which journalism undertaken in the public interest shall enjoy a complete defence against a libel suit. Conditions for the defence include the right of reply for potential claimants, and that the balance of the piece was fair in view of what the writer knew at the time.

The ruling removed the awkward - and hitherto binding - conditions of being able to describe the publisher as being under a duty to publish the material and the public as having a definite interest in recieving it. The original House of Lords judgment in Reynolds was unclear and held 3-2; whereas Jameel was unanimous and resounding.

Lord Hoffman's words, in particular, for how the judge at first instance had applied Reynolds so narrowly, were very harsh. Hoffman LJ made seven references to Eady J, none of them favourable. He twice described his thinking as unrealistic and compared his language to “the jargon of the old Soviet Union.”

North America

Canada

The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms.

2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Due to section 1 of the Charter, the so-called limitation clause, Canada's freedom of expression is not absolute and can be limited under certain situations. 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 prescribed in law can be permitted if it can be justified as being a reasonable limit in a free and democratic society. Conversely, it implies that a restriction can be invalidated if it cannot be shown to be a reasonable limit in a free and democratic society. The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity.

In April 29, 2004, Bill C-250 was passed which includes as hate speech propaganda against people based on their sexual orientation. It is now illegal to publicly incite hatred against people based on their colour, race, religion, ethnic origin, and sexual orientation. However, under section 319 on hate speech, a person cannot be convicted of hate speech "if the person can establish that the statements made are true."

An example of the limiting of obscenity is that case Forget v. Quebec (Attorney General) 1988, (2 S.C.R. 90) 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 section 1 of the Canadian Charter of Rights and Freedoms. This decision was one of the first cases after the section 1 Oakes test was established. Bill 101 was subsequently put into effect though by invoking the notwithstanding clause of the Charter.

Other laws that protect freedom of speech in Canada, and did so, to a limited extent, before the Charter was enacted in 1982, include the Implied Bill of Rights and the Canadian Bill of Rights.

United States

Main article: Freedom of speech in the United States

In the United States freedom of expression is protected by the First Amendment to the United States Constitution. There are several exceptions to this general rule, including copyright protection, the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. The Miller test in particular rarely comes into effect.

The principle of freedom of speech promotes dialogues on public issues, but it is most relevant to speech which is unpopular at the time it is made. As Pennsylvania state legislator Rep. Mark B. Cohen of Philadelphia once argued in a legislative debate, "Freedom of speech which is limited to freedom to say whatever a majority of the Pennsylvania legislature agrees with is not real freedom of speech."^{[citation needed]}

Neither the federal nor state governments engage in preliminary censorship of movies. However, the Motion Picture Association of America has a rating system, and movies not rated by the MPAA cannot expect anything but a very limited release in theatres, making the system almost compulsory. Since the organization is private, no recourse to the courts is available. The rules implemented by the MPAA are more restrictive than the ones implemented by most First World countries. However, unlike comparable public or private institutions in other countries, the MPAA does not have the power to limit the retail sale of movies in tape or disc form based on their content. Since 2000, it has become quite common for movie studios to release "unrated" DVD versions of films with MPAA-censored content put back in.

Within the U.S., the freedom of speech also varies widely from one state to the next. Of all states, the state of California permits its citizens the broadest possible range of free speech under the state constitution (whose declaration of rights includes a strong affirmative right to free speech in addition to a negative right paralleling the federal prohibition on laws that abridge the freedom of speech). More specifically, through the Pruneyard case ruling, California residents may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public.

Historically, local communities and governments have sometimes sought to place limits upon speech that was deemed subversive or unpopular. There was a significant struggle for the right to free speech on the campus of the University of California at Berkeley in the 1960s. And, in the period from 1906 to 1916, the Industrial Workers of the World, a working class union, found it necessary to engage in free speech fights intended to secure the right of union organizers to speak freely to wage workers. These free speech campaigns were sometimes quite successful, although participants often put themselves at great risk.

See also

• Media transparency
• International Freedom of Expression Exchange

Footnotes

1. ^ See List of Declarations and Reservations to the International Covenant on Civil and Political Rights from the Office of the United Nations High Commissioner for Human Rights
2. ^ Print of official Danish National Constitution Law as raw text
3. ^ http://www.nycny.com/columns/schiff/02-10-06.html
4. ^ http://www.iuscomp.org/gla/

Further reading

• Milton, John. Areopagitica: A speech of Mr John Milton for the liberty of unlicensed printing to the Parliament of England
• Hentoff, Nat. Free Speech For Me - But Not For Thee. How the American Left and Right Relentlessly Censor Each Other 1992

Wikipedia information about Freedom of speech This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Freedom of speech". It may not have been reviewed by professional editors (see full disclaimer). Help contribute to Americola and edit this article.