POLI week 10 - Freedom of Expression

Socrates (399 BCE)

• accused of corrupting youth and impiety for asking to many questions; challenging traditions and elites, questioning gods

• sentenced to death by poison

JS Mill, On Liberty (1859)

expansionist (protective) view

• censorship can lead to intellectual stagnation

  • as the only way a human being can claim to know a whole subject is to hear all opinions

• censorship as non-democratic → means certain people have hold of the truth

• censorship (even for wrong, dangerous ideas) → robs society of chance to
  challenge it, refine it, prove it false

Adam Smith

• if free market → healthy economy

• then free marketplace of ideas (freedom of expression) → free/democratic society

  ⭐  JS Mill influenced by Smith: with free marketplace of idea, individuals are free to chose view they agree with

did Mill advocate for absolute freedom of speech

• no → Harm Principle:

  • threshold: direct harm to others

    • but how do we define direct harm?

do modern hate speech laws align with Mill’s theory

no as they prohibit certain expressions outright

(ex. Holocaust denial laws in Europe)

Mill’s (4) Assumptions

1. suppressed ideas may contain some truth

2. fallibility exists (tendency to make mistakes/be wrong) → no one has a monopoly on truth

3. even false ideas have value (as they present a counterargument to the truth)

4. truth needs to be continuously tested through counterarguments

free speech advocates

1. jefferson: error of opinion should be tolerated when reason can combat it

2. chomsky: freedom of expression means believing in it for people you do not agree with

Oliver Wendell Holmes Jr

• opposed being drafted for WW → proponent for this

  • argued he did this according to his first amendment rights (freedom of speech)

• free speech is not absolute

Clear and Present Danger Test:

• speech can be restricted if they create a clear and present danger

“the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic”

• could cause panic, leading to injuries/chaos

• directly endangers public safety

• thus not be protected under the First Amendment

used analogy to justify limits on speech that posed a risk to national security, particularly in the context of anti-war protests during World War I

modern challenges to freedom of expression

1. Misinformation

2. Fake News

3. Cancel Culture (exercised by public)

4. AI-Driven Censorship

Frankfurt School and Critical Theory

• German thinkers: Marcuse, (also Adorno, Horkheimer)

• Marxism, Freudian
  frameworks to critique capitalist culture

Marcuse:

• dominant ideologies suppress dissent under concept “freedom”

• regulations focused protecting oppressed

  • against Mill’s idea

• Critics claimed this became a tool for silencing free speech

Foucault/Derride

• language/truth is a byproduct of power

• some concluded to counter power structures we need to police language

• power is everywhere

• language/truth is a byproduct of who holds the power

• some concluded from this: if language can perpetuate oppression, it needs policing

1960s Counter-Culture and Identity Politics

• roots in the civil rights, feminist, and anti-war movements

• demanded regulated speech a free speech can be harmful to marginalized

• grass-roots concept of regulated speech

Linguistic Determinism
(Sapir-Whorf Hypothesis)

language shapes thought

• thus changing how we talk can change our thoughts about the world

Self-Regulated Speech (political correctness)

• two povs on political correctness

  • empathetic, just → protect marginalized

  • restrictive and limiting

freedom of expression in the ECHR

article 10:

1. Everyone has the right to freedom of expression

2. freedom of expression carries duties and responsibilities, thus may be subject to restrictions as 1. prescribed by law and 2. necessary in democratic society

   • for national security, territorial integrity, public safety, crime, health, morals, rights/reputations of others, preventing disclosure of info received in confidence, maintaining the authority and impartiality of the judiciary

freedom of expression in ICCPR

article 19:

1. all have right to hold opinions without interference

2. all have the right to freedom of expression

3. freedom of expression carries duties and responsibilities, thus may be subject to restrictions as 1. provided by law and 2. necessary

   • rights/reputations of others, national security, public order, health, morals

article 20:

1. prohibits propaganda for war

2. prohibits national, racial, religious hatred that constitutes incitement to discrimination, hostility, violence

what does lawful restrictions refer to?

law that is accessible, transparent, easily understood

is freedom of expression jus cogens or erga omnes

no → if it was, it wouldn’t be possible to restrict it

(4) Means and Mechanisms of Treaty Interpretations

→ tells us how to read treaty conditions

1. literal (textual)

2. contextual

3. historical (intent-based tradition)

4. teleological

1. literal interpretation (textual)

• literal (dictionary) meaning

issue with literal interpretation (textual)

• vague words

  • ex. public moral

2. contextual interpretation

• provision within context of other provisions, or drafting history of treaty (“Travaux Préparatoire)

3. historical interpretation (intent-based tradition)

• drafters and their original intentions at time of treaty’s adoption

  • helps us understand what the original limitations were intended to be

what do some jurists say is the dominant approach to interpreting treaties?

what do other jurists say in counterargument?

• historical (intent-based)

• both common law and civil law employ this (consider original intentions)

• there is no consistent method → differs based on context or employs all

4. teleological interpretation

• based on purpose or intended goal often in present conditions

what type of interpretive approach is living instrument an outcome of?

teleological interpretation

interpreting echr with these tools

• to understand article 10 (on freedom of expression), we consider it within the context of article 17

  • 17: prohibits abuse of rights

  → contextual interpretation

how article 17 is used in ECtHR

if there is a possibility for abuse of rights under ECHR, the court will refuse to hear your claim because HR are only meaningful within context of liberal order

• ex. facist party with racist goal cannot contest their ban

general rule for exceptions of freedom of expression

must remain exceptional

• thus exceptions must be restricted

  • ex. only during war times → irl, states take liberties in making exceptions

is ban of separatist parties in Spain in consonance with international law on freedom of expression

• yes → restrictions on freedom of expression in cases that threaten territorial integrity

freedom of of expression can be subject to restrictions on the basis of protecting the reputations of others… but what about for politicians?

• which case ruled on this?

New York Times Co. VS Sullivan

• politician defamed by NYT post that was proven false

• sued NYT

Ruling: Supreme Court of UK → when it comes to politicians there is no claim for defamation unless press had an intent of malice

• malice as synonymous with mens rea

established the Actual Malice Test

Handyside v. United Kingdom (1976)

• est principle that freedom of expression includes the right to offend, shock, disturb.

• publisher convicted for distributing a book deemed obscene under UK law

  ECtHR ruling:

• upheld the conviction (margin of appreciation), but defended controversial speech in democratic societies by stating restrictions must be prescribed by law and necessary in a
  democratic society

Garaudy v. France (2003)

• writer convicted for Holocaust denial

  ECtHR ruling:

• found claim invalid: Holocaust denial is not protected under Article 10 because it violates the Convention’s underlying values of tolerance and non-discrimination

• thus est that holocaust denial can be excluded from article 10 when promoting hatred

Vejdeland and Others v. Sweden (2012)

• applicants had distributed homophobic leaflets in a Swedish school.

  ECtHR ruling:

• while non-violent actions, they can be restricted → contributed to intolerance and prejudice

  → speech which insults minority groups may be restricted to protect the rights of others

Perinçek v. Switzerland (2015)

• Turkish politician was convicted in Switzerland for denying the Armenian Genocide

  ECtHR ruling:

• not hate speech, instead was part of a legit political/historical debate

  • est that not all genocide denials are equivalent to Holocaust denial → importance of context

Delfi AS v. Estonia (2015)

• online news site was held responsible for hate speech posted by readers on platform

  ECtHR ruling:

• upheld Estonia’s ruling

• intermediaries (like media platforms) can bear responsibility for user-generated hate speech

Schenck v. United States (1919)

• distributed leaflets urging draftees to resist military conscription during WWI

  USSC ruling:

• upheld his conviction under Espionage Act

  • first est “clear and present danger” test

  • (fire quote)

  • marked start of First Amendment limitations

Brandenburg v. Ohio (1969)

• KKK leader who made a public speech calling for vengeance against racial minorities and gov

• police arrest him and ban him from making public speeches

  USSC ruling:

• overturn conviction, replacing “clear and present danger” test with the “imminent lawless action” test

  test:

  1. KKK leader who made a public speech calling for vengeance against racial minorities and gov

  2. police arrest him and ban him from making public speeches

     → est high standard to restrict free speech in US

• in this case: while this person made this speech and advocated for action, there was no racial minority present and nothing happened as a result

  • thus was not likely to result in imminent lawless action

hate speech in academic debates

• does not call for instant violence

• Europe: ban of holocaust denial

  • but not applicable to Armenian genocide (based on history, location, etc.)

• US: no ban

R.A.V. v. City of St. Paul (1992)

USSC ruling:

• overturned ban on certain symbols (ex. swastikas, burning crosses).

• emphasized gov cannot regulate speech, even if offensive/hateful

• reaffirmed strong protection of hate speech under the U.S. Constitution

Snyder v. Phelps (2011)

• Church protested at military funeral with anti-gay signs

  USSC ruling:

• offensive speech, but protected bc dealt with matters of public concern and occurred in a public space

• reinforced that emotional offense is not grounds for restriction

Faurisson v. France (1996)

• academic convicted of Holocaust denial

  UNHR Committee ruling:

• justified under Article 19(3) of the ICCPR, read together with Article 20(2), which obliges states to prohibit hate speech

• shows freedom of expression under international law is not absolute, esp with cases concerning hate speech

General Comment No. 34 on Article 19 (2011)

• (not a case)

• clarified freedom of expression under ICCPR includes political, historical, and religious speech, even if offensive

• reaffirmed that hate speech, incitement to violence/discrimination must be restricted under Article 20(2)

• advised against blasphemy and memory laws unless there is direct incitement to hatred