Justifying Limitations on the Freedom of Expression
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- Published: 01 November 2020
- Volume 22 , pages 91–108, ( 2021 )
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- Gehan Gunatilleke ORCID: orcid.org/0000-0002-8670-8602 1 , 2
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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.
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The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression for certain reasons. International and domestic law empowers the state to impose limitations on the freedom of expression in order to advance broad aims such as national security, public order, public health, and public morals. Yet cases from around the world demonstrate that the freedom of expression is vulnerable to unwarranted restrictions.
One of the most common tests used to determine whether a limitation on the freedom of expression is justified has come to be known as the ‘proportionality test’. In this article, I critique the typical proportionality test that is applied in many jurisdictions. I then offer a justificatory approach that reframes this typical test to address some of its normative and practical weaknesses. This alternative approach places individual ‘duties of justice’ at the heart of the state’s burden to justify a limitation on the freedom of expression.
The first section of this article discusses the unique place that the freedom of expression occupies in the liberal tradition, and explains why a robust justificatory approach is needed to protect the freedom of expression from unwarranted limitations. The second section explores some of the main weaknesses of a typical proportionality test when applied in relation to limitations on the freedom of expression. I take examples from a number of countries to illustrate the recurring tendency for the freedom of expression to be subjected to unwarranted restrictions. In the final section, I make a case for a ‘duty-based’ justificatory approach. The approach would require the state to demonstrate—by presenting publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. I explain how this approach addresses some of the normative weaknesses of a typical proportionality test. I will also illustrate how such an approach can better deal with the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.
The Value of the Freedom of Expression
The freedom of expression broadly involves the communication of ideas, opinions, convictions, beliefs, and information. International legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) recognise the ‘freedom of expression’ as a right that can be exercised ‘either orally, in writing or in print, in the form of art, or through any other media of [the individual’s] choice’ (art 19, para 2).
Taking the freedom of expression seriously involves acknowledging it both as a ‘liberty’ and a ‘claim right’. A ‘liberty’, conceptually speaking, refers to the absence of any competing duty to do or refrain from doing something (Hohfeld 1919 , pp. 36–39). Footnote 1 The freedom of expression is a liberty, as it involves absence of constraints on what an individual is free to express. For example, a person may have the liberty to advocate for a country’s ratification of the ICCPR, as there may be no competing duty owed to others to refrain from such advocacy. A ‘claim right’ meanwhile corresponds to another’s duty to do or refrain from doing something (Hohfeld 1919 , p. 39; see also George 1995 , pp. 119–122). The normative significance of a ‘right’ is that it is in some way claimable (O’Neill 1996 , p. 131; Hart 1955 ), i.e. that the rights-holder has an entitlement to claim, from duty-bearers, the performance of duties (Feinberg 1970 , p. 243). The freedom of expression entails ‘claim rights’, including the claim right to non-interference with the expression in question. Since claim rights correspond to duties, the freedom of expression imposes duties on others to refrain from interfering with the expression in question. For example, an individual’s claim right to advocate for the election of a particular candidate contemplates the imposition of duties on others, including the state, to refrain from interfering with such advocacy.
The reason we recognise certain claimable rights is often linked to the underlying interests these rights set out to protect. Joseph Raz observes a person has a ‘right’ when his interests are sufficient reason for holding others to be under a duty (Raz 1986 , p. 166). The importance of the interests that underlie the freedom of expression point to why we ought to, and indeed do, recognise it as a claimable right. Recalling such value is important, as the process through which we justify limitations on the freedom of expression is contingent on the value we attach to it.
On the one hand, the freedom of expression is of inherent value to the individual, as it involves the external communication of an individual’s ‘ forum internum ’ or inner realm of thoughts, beliefs, and convictions—a realm that is arguably inviolable (Boyle and Shah 2014 , p. 226). The freedom of expression is then connected to certain foundational values associated with the forum internum , such as personal autonomy and human dignity. On the other hand, the freedom of expression has consequentialist and epistemic value. It is certainly valuable to democracy, as political participation, criticism of government, media freedom, and indeed the very act of voting are aspects of the freedom of expression. John Stuart Mill’s defence of the freedom of expression points to its epistemic value. Mill argues that human fallibility justifies greater tolerance of the freedom of expression, as there can be no certainty with respect to what is true and what is false (Mill 1859 , pp. 19–21). He contends that there is no inherent justification for suppressing the beliefs and opinions of others through coercive means, even if one believes that those beliefs and opinions are untrue, as they may in fact be true, and the alternative beliefs and opinions untrue. Mill also claims that truth can only be ascertained in a ‘clearer’ and ‘livelier’ form when it is permitted to collide with error (p. 19), and adds that ‘conflicting doctrines’ often ‘share the truth between them’ (p. 44).
The inherent, consequentialist, and epistemic value of the freedom of expression suggests that it should not be limited without meeting a substantial burden of justification. When the conduct in question relates to the freedom of expression, this justificatory burden falls on those who wish to restrict the conduct. Such a scheme is consistently featured in the liberal tradition, and is consistent with the ‘fundamental liberal principle’ (Gaus 1996a , pp. 162–166)—that freedom is the norm and the limitation is the exception; so ‘the onus of justification is on those who would use coercion to limit freedom’ (Gaus 1996b ; Feinberg 1987 , p. 9). Therefore, in the case of the freedom of expression, the starting point in the process of reasoning is clear: an individual is ordinarily entitled to engage in the conduct associated with the freedom of expression, unless a restriction on the conduct is carefully and convincingly justified.
The Proportionality Test
Justification involves providing good reasons for an action, omission, or belief. According to Raz, a reason is ‘a consideration in favour of doing, believing, or feeling something’ (Raz 1999 , pp. 16–17; see also Scanlon 1998 , p. 17). Given the special value we attach to the freedom of expression, a reason must be of a particular kind when deployed to limit the freedom of expression. I accordingly approximate good reasons—in the specific context of justifying limitations on the freedom of expression—to what John Rawls called ‘public reason’ (Rawls 2005 , pp. 212–254). Rawls explains that ‘public reason’ entails the justification of political decisions through the use of values and standards that are publicly available and acceptable (pp. 227–228). Reasons can be characterised as ‘public’ when citizens who are equal accept them as valid (p. 213). Crucially, a reason does not fall within the rubric of public reason merely because the majority in society view it as a good reason. Even if, for instance, the overwhelming majority view some minority group as ‘culturally inferior’, public reason would exclude such inferiority as a justification for discriminating that group. It would be excluded because such perceived inferiority is not a reason that is publicly available and acceptable to all citizens on the basis of equal citizenship. Therefore, ideals of equality are imbedded into the concept of public reason; Equality is a constituent element that necessarily excludes purely majoritarian reasoning.
In this section, I examine one of the ‘prominent’ approaches (Möller 2014 , p. 32) to justifying limitations on the freedom of expression: the proportionality test. I aim to explain the typical features of this test, and point to some of its main weaknesses, particularly when applied to limitations on the freedom of expression.
A typical proportionality test assesses whether a limitation on a right can be ‘justified by reference to gains on some other interest or value’ (Urbina 2014 , p. 173). Most jurisdictions in Europe, and treaty bodies such as the United Nations Human Rights Committee, apply the proportionality test when evaluating the permissibility of limitations. The test usually contains four limbs (Tridimas 2007 , p. 139). First, the state must pursue an aim that serves a ‘compelling’ (Kumm 2004 , p. 593) or ‘legitimate’ interest (Tremblay 2014 , p. 865; Barak 2012 ) when limiting the right. This limb contains a normative requirement, as certain interests that are ‘illegitimate’ would not be permissible at the outset. For example, the aim to destroy a population would not qualify as ‘legitimate’. Second, there must be a rational nexus between the specific measure used to limit the right and the legitimate interest. This limb is sometime referred to as the ‘suitability test’ (Arai-Takahashi 2005 , p. 32; Van Dijk and Van Hoof 1998 : pp. 771–773). Third, this measure must be necessary to advancing, or preventing setbacks to, that legitimate interest. This limb is naturally termed the necessity test. Finally, the measure must be, in the ‘strict sense’, proportionate, i.e. it must involve a net gain, when the reduction in the enjoyment of the right is weighed against the level to which the interest is advanced (Rivers 2006 , p. 181). According to Aharon Barak, proportionality stricto sensu ‘requires a balancing of the benefits gained by the public and the harm caused to the…right through the use of the means selected by law to obtain the proper purpose’ (Barak 2012 , p. 340). Grégoire Webber meanwhile notes that such ‘balancing’ is designed to demonstrate a ‘proportionality’ between the negative effect (on the freedom of expression, for instance) on the one hand, and the beneficial effect of the limitation (in terms of the legitimate interest) on the other hand (Webber 2009 , pp. 71–72).
Different versions of the proportionality test have been applied in different jurisdictions. The German Federal Constitutional Court, for instance, applies a four-part test that considers the question of ‘balancing’ only in the final stage of the test. This version of the test has come to reflect a general rule of law within European Community law (Arai-Takahashi 2005 , p. 29). By contrast, the Canadian Supreme Court considers ‘balancing’ at earlier stages as well, i.e. under the legitimacy and necessity subtests (Grimm 2007 ). The Court has found that, under the legitimacy subtest, the legitimate interest must be of sufficient importance to warrant overriding the right in question (R v. Oakes 1986 ; Choudhry 2006 ). Moreover, under the necessity subtest, the selected measure must, when compared to the available alternatives, impair the right the least . Accordingly, the Canadian version of the test expects some balancing to be undertaken when determining which aims are legitimate for the purpose of justifying a limitation, and when determining whether the measure in question is the least restrictive among available options. Meanwhile, in the United States (U.S.), ‘content-based’ limitations on the freedom of expression attract ‘strict scrutiny’, i.e. the highest level of judicial scrutiny of the restrictive measure. This approach is essentially founded on an American common law idea that the right to the freedom of expression—protected under the First Amendment to the United States Constitution—is a highly valued individual right (Strauss 2002 ). In the U.S., the state must accordingly meet the heaviest justificatory burden when restricting certain types of speech, such as political speech. By contrast, ‘content-neutral’ limitations on the freedom of expression (for example, restrictions on the form, extent, timing, or medium of the expression in question) are reviewed under a ‘intermediate scrutiny’ test. The U.S. Supreme Court formulated a four-part test to determine whether a content-neutral limitation is constitutional (United States v. O’Brien 1968 ; see also Zoller 2009 , p. 906; Stone 1987 ): (1) the limitation must be within the constitutional power of government; (2) the limitation must further an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of the freedom of expression; and (4) the limitation must be narrowly tailored—no greater than necessary. In subsequent cases, the Supreme Court devised a fifth limb: the limitation must leave open ample opportunity for communication (Ladue v. Gilleo 1994 ). Although the justificatory approach prevalent in the U.S. is rarely termed a ‘proportionality test’, it clearly contains elements of balancing. Whichever version of the test is employed, it is apparent that the proportionality test generally involves a justificatory burden of a particular form: the limitation on the freedom of expression is justified only if the countervailing interests outweigh the individual’s interests in the freedom of expression. It is for this reason that the very notion of proportionality is described as ‘inevitably flexible and open-textured in nature’ (Arai-Takahashi 2005 , p. 34).
A typical proportionality test has a number of weaknesses worth noting. There is an ongoing scholarly debate on the suitability of the test, and in the course of discussing some of the weaknesses I detect in the typical version of the test, I shall touch on some of the elements of this debate. Of course, proponents of proportionality often argue that the weaknesses pointed out by critics are with respect to cases in which the test is misapplied, and that the proportionality test is sound if it is applied correctly (e.g. Möller 2014 ; Kumm 2010 ). However, the strength of the test lies in how it is applied in practice. In this context, I set out to evaluate the ‘typical’ proportionality test, which contains both normative and political weaknesses when applied to assess limitations on the freedom of expression. In doing so, I leave open the potential for the test to be applied in a more robust manner. In fact, my proposal conceives of a more robust version of the test.
At a normative level, the typical test often fails to adequately recognise and account for the special value of the freedom of expression. Such a weakness is particularly evident where the court or tribunal concerned glosses over the first three limbs of the test and focuses instead on the final stage of balancing. Kai Möller, referring to German practice in particular, observes that typically, ‘the balancing stage dominates the legal analysis and is usually determinative of the outcome’ of the assessment of whether a limitation is permissible or not (Möller 2014 , p. 34). When the emphasis of the assessment is on balancing alone, the court or tribunal would often rely on practical reasoning to determine the permissibility of a limitation (Kumm 2010 , p. 147). It is for this reason that many rights scholars have criticised the proportionality test for its failure to give adequate normative weight to individual rights (Letsas 2007 ; Tsakyrakis 2009 ). According to these critics, proportionality treats rights on par with any other interest or value, and such an equation undermines the special importance we attach to rights. Many of these critics rely on well-known ‘rights-based’ approaches to justifying limitations on rights, such as the approaches advocated by Ronald Dworkin and John Rawls. According to Dworkin, individual rights, such as the right to the freedom of expression, ‘trump’ other non-rights interests (Dworkin 1977 , p. xi). He argues that non-rights interests, such as collective interests, should be ruled out when justifying limitations on individual rights (Dworkin 1984 , p. 153; see also Waldron 1993 , p. 210). This approach is based on the view that rights have peremptory value; they exist, and ought to be protected, even if the community is genuinely worse off due to their existence or protection (Dworkin 1985 , p. 350). Understood this way, the right to the freedom of expression constrains the state’s pursuit of collective interests, and sets out a protected realm that the state cannot interfere with even when collective interests could be served through such interference. Rawls meanwhile argues that basic liberties, such as the freedom of expression, can only be limited for its own sake or for the sake of other basic liberties (Rawls 1999 , p. 220). These basic liberties have ‘lexical priority’ Footnote 2 over all other types of interests. Accordingly, basic liberties such as the freedom of expression would have ‘absolute weight’ with respect to interests unrelated to basic liberties (Rawls 2005 , p. 294). For example, the freedom of expression cannot be denied to an individual on grounds such as ‘economic efficiency and growth’ (pp. 294–295). Therefore, all reasons that are not related to basic liberties of similar importance to the freedom of expression will be excluded (at the outset) from the justificatory process. In sharp contrast to these rights-based approaches, the proportionality test expects a court or tribunal to weigh rights such as the right to the freedom of expression with collective interests such as national security, or public order, health, or morals. Such weighing—it could be argued—places the freedom of expression on the same normative plane as these collective interests, thereby undermining its peremptory value.
This normative challenge is strongly linked to the textual framework of many international and domestic instruments that set out the basis for limiting the freedom of expression. For example, article 19, paragraph 2 of the ICCPR, and article 10, paragraph 2 of the European Convention on Human Rights (ECHR), explicitly permit states to limit the freedom of expression on the grounds of collective interests, such as public order and public health. Similarly, the constitutions of numerous countries permit limitations on the freedom of expression on the basis of a host of collective interests. The challenge may then also be doctrinal, as the typical proportionality test often suffers from normative weaknesses essentially because the legal doctrine that sets out the test reflects these weaknesses. Accordingly, the ICCPR and the ECHR can encounter normative problems in practice, as the limitation regimes found in these instruments contemplate broad governmental discretion when imposing limitations on the freedom of expression. Such discretion has raised serious concerns among scholars with respect to how well proportionality meets normative priorities such as the rule of law, or legal predictability (Von Bernstorff 2014 , p. 66; Urbina 2014 , p. 180).
At a political level, a typical proportionality test is vulnerable to two risks associated with granting the state wide discretion to limit the freedom of expression. First, the state can use a limitation regime to advance majoritarian interests. The freedom of expression of minorities and political dissenters may be targeted for reasons that are not publicly justifiable. In this context, majoritarian interests can infiltrate limitation grounds such as national security, public order, public health, and public morals. Second, the state can, in the course of limiting an individual’s freedom of expression, attempt to offload its own positive obligations owed to society. An individual’s expressive conduct can appear to ‘cause’ others to react in ways that harm third parties. Such cases often arise when the expressive conduct has a religious dimension. Although the expressive conduct may also be classified as religious manifestation or practice, it is difficult to exclude such conduct from the broader domain of the freedom of expression. In such cases, the state may choose to restrict the specific expressive conduct rather than focus on the wrongdoers who engage in violence. It is the state that owes citizens a positive obligation to maintain law and order, and it is up to the state to prevent violence, and punish those who engage in it for whatever cause. However, when the violence is committed by members of the majority community, the state may look to target the individual whose conduct appeared to ‘cause’ the wrongdoing, rather than risk confronting the majority community. In such circumstances, it may attempt to justify a restriction on the expressive conduct of the individual concerned, ostensibly to maintain public order and protect citizens from the violent reactions of others. It may do so regardless of how unreasonable such reactions are.
The typical proportionality test has no convincing answer to the political risks associated with state authority to limit the freedom of expression. It relies heavily on the good faith of the state, and the ability of a court or tribunal to convincingly weigh the competing interests at stake. Yet several examples from a variety of jurisdictions demonstrate that courts and tribunals are often compelled to offer the state wide discretion. The proportionality test only requires the adjudicative body to assess which of the two interests—the individual’s interest in the freedom of expression or the legitimate interest being pursued by the state—is weightier. It would not contemplate any specific threshold that signals that the competing interest is sufficiently weighty. Scholars such as Francisco Urbina accordingly point out that the incommensurability of competing values and interests makes the proportionality test unsuited to determining the permissibility of limitations on rights (Urbina 2015 ). Given that it is so difficult to undertake the task of balancing with any precision, the adjudicative body would often defer to the state.
A number of illustrations demonstrate both the normative and political weaknesses inherent in a typical application of the proportionality test. Admittedly, some of these cases overlap with the terrain of other rights, such as the freedom of religion or belief. Yet the point about the freedom of expression is that it is a general core right that underlies many other rights. The inherent weaknesses of the typical proportionality test are best observed precisely in these complex cases where several rights are at play. Three classes of cases may be briefly cited to illustrate the weaknesses I am referring to.
First, the state may rely on majoritarian conceptions of morality to restrict certain expressions deemed contrary to those conceptions. The classic example of such restrictions on the freedom of expression is the landmark case of the European Court of Human Rights, Handyside v. The United Kingdom ( 1976 ). In this case, the Court upheld the seizure of an educational book that dealt with the subject of sex, and found no violation of the freedom of expression in terms of article 10 of the ECHR. The limitation was justified on the basis of public morals. A similar example is the restriction of the advocacy of same-sex rights in Russia. In Fedotova v. The Russian Federation ( 2012 ), the complainant displayed posters that read ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The posters were displayed near a secondary school. The complainant claimed that the purpose of the expression was to promote tolerance towards gay and lesbian individuals. She was convicted of public actions aimed at ‘propaganda of homosexuality’ among minors. The state asserted that the conviction was necessary in the interests of children ‘to protect them from the factors that could negatively impact their…moral development’ (para 5.6 of the Decision of the Human Rights Committee). The Human Rights Committee relied on the principle of non-discrimination, and found that the limitation was discriminatory on the basis of sexual orientation. It did not actually apply a typical proportionality test to deal with the limitation, and instead relied on an additional normative basis to find a violation of the freedom of expression. The case serves as a reminder that a typical proportionality test would only require the balancing of the individual’s interests in the freedom of expression with the asserted public interest in morality and moral development. Such a test would not account for the fact that the asserted interest in public morals is actually a majoritarian—for instance, heteronormative—conception of morality. The typical test would need to be bolstered to deal with the challenge. The Committee accordingly bolstered the test by relying on the principle of non-discrimination. However, if a more general prohibition on expressions about sex had been instituted, such as, for example, the censoring of a book dealing with sex education, the Committee’s reliance on the principle of non-discrimination alone would not have sufficed.
Second, the state may rely on majority values and interests to restrict certain types of expressions deemed a threat to these values and interests. The jurisprudence of the European Court of Human Rights offers a number of examples of such restrictions. In these cases, the doctrine set out in the text of article 10 of the ECHR has governed the Court’s reasoning. The Court has typically applied a four-part test: the limitation must (1) be provided by law; (2) pursue a legitimate aim listed in the article; (3) be necessary in a democratic society; and (4) be proportionate stricto sensu . Some proponents of the proportionality test adopted by the European Court of Human Rights have suggested that the phrase ‘necessary in a democratic society’ entails a commitment to pluralism, and is a check on majoritarianism (Zysset 2019 , p. 235). Indeed, the Court has viewed certain aspects of the freedom of expression, such as press freedom, and the criticism of public officials, as vital due to their relevance to the democratic process. It has accordingly placed a heavy justificatory burden on the state when expressive conduct associated with ‘democracy’ is being restricted (Thoma v. Luxembourg 2001 ). Yet, this counter-majoritarian check is not always evident in the Court’s jurisprudence, particularly when the religious sentiments of the majority community are at stake. In the case of İ.A. v. Turkey ( 2005 ), the managing director of a publishing house was convicted of blasphemy for publishing a novel that was deemed deeply offensive to Muslims. The applicant complained that the conviction violated his freedom of expression under article 10 of the ECHR. In response, the state argued that ‘the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim’ (para. 20 of the judgement). Accordingly, the Court was called upon to weigh the individual’s freedom of expression with the majority community’s interests in their own freedom of thought, conscience, and religion. The majority of the Court held that the novel contained statements that amounted to ‘an abusive attack on the Prophet of Islam’ (para. 29). It concluded that the restriction was reasonable, as it ‘intended to provide protection against offensive attacks on matters regarded as sacred by Muslims’ (para. 30). It accordingly found that there was no violation of article 10, and that the measures under consideration satisfied the proportionality test.
The European Court’s observations in İ.A. v. Turkey relied heavily on the doctrine of margin of appreciation, which is often applied to afford states some ‘latitude’ when limiting rights (Arai-Takahashi 2002 , p. 2). The doctrine was applied in the case of Handyside v. the United Kingdom ( 1976 ), and has since been relied upon to justify some level of judicial deference to states on questions of limitations. For example, in Otto-Preminger-Institut v. Austria ( 1995 ) and in Wingrove v. The United Kingdom ( 1996 ), the Court relied on the margin of appreciation doctrine to hold that the restriction of expressions that caused public offence to the majority religious group (in both cases the majority group was Christian) was permissible under the ECHR. In each case, the Court found no violation of article 10 of the ECHR, and held that the restrictions on the public screening of films deemed offensive to a religious majority were proportionate.
The margin of appreciation doctrine has also been applied in cases involving religious expression, including wearing certain religious attire. Cases such as S.A.S v. France ( 2014 ) and Leyla Şahin v. Turkey ( 2005 ) essentially concerned article 9 of the ECHR, which protects the freedom to manifest religion or belief. However, the applicants in both cases also claimed that the limitations in question violated their freedom of expression under article 10. The Court upheld restrictions on the niqāb (a full-face veil) and the Islamic headscarf on the basis that such attire is incompatible with ‘European’ values such as ‘living together’ and ‘secularism’, and found that these restrictions did not violate article 10 of the ECHR. In such cases, the Court has sought to balance the individual’s right to the freedom of expression (including the freedom to engage in certain types of religious expression) with broader societal aims such as secularism, and has held that the limitations in question were proportionate. In each case, the Court has relied on the margin of appreciation doctrine to evaluate the permissibility of the limitation on the freedom of expression. The doctrine has thus attracted intense criticism from scholars—primarily due to the fact that the Court has often lacked a coherent and consistent approach to applying the doctrine (Letsas 2006 ).
Third, the state may rely on broad conceptions of ‘public order’ to restrict expressions that may ‘cause’ others to react in a violent or disorderly manner. In the case of Zaheeruddin v. State ( 1993 ), the Pakistani Supreme Court speculated that the public expressions of the Ahmadi community claiming that they are ‘Muslim’ would provoke outrage among the Sunni majority (Khan 2015 ). It therefore justified restricting the public display of the Kalimah Footnote 3 on the basis of public order. The Human Rights Committee has also considered cases involving limitations on the freedom of expression on the basis that the expression in question could cause others to engage in disruptive conduct. In Claudia Andrea Marchant Reyes et al. v. Chile ( 2017 ), the Committee considered the removal and destruction of a work of art on the grounds of ‘public order’. The work of art contained fifteen banners commemorating the fortieth anniversary of the military coup d’état in Chile. The complainant had in fact obtained the necessary approvals to display the banners at nine bridges. The state, however, argued that the removal of the banners was necessary to prevent ‘potential disruption to public order arising out of the burning of the banners’, and that it was the state’s ‘duty’ to safeguard public order. It argued that the limitation was for the ‘benefit of persons who crossed the bridges in question on a daily basis, given that the banners could have been burned precisely at the times of the greatest movement of people and caused injury’ (para 4.3 of the Committee’s decision). In this particular case, the Committee found that the limitation was unwarranted, as the state provided ‘no evidence of what specific information it had that gave rise to fears that the work might be burned’ (para 7.5). Its decision may have been different if in fact there was such evidence. In any event, the case remains a good example of how the state may seek to offload its obligation (to maintain public order) onto the individual concerned by limiting the individual’s freedom of expression—a vulnerability to which the typical proportionality test has no coherent response.
Majoritarian conceptions of certain public interests, including public order and morals, often drive the state’s justification for a limitation on the freedom of expression. The state can also offload its positive obligations to maintain public order in the course of limiting an individual’s freedom of expression, and seek to justify restrictions on expressions that attract majority outrage. These types of justifications can infiltrate the reasoning of the court or tribunal tasked with assessing the proportionality of the limitation. In essence, the typical proportionality test, which asks the adjudicative body to do no more than weigh competing interests, does not avoid these political risks. In the final section of this article, I present an alternative justificatory approach that attempts to build on the merits, and address the weaknesses, of a typical proportionality test.
A Duty-Based Justificatory Approach
The alternative justificatory approach I have in mind is not a radical departure from the typical proportionality test. The alternative approach also contemplates ‘balancing’. Its main departure from the typical proportionality test is that it seeks to direct the state’s justificatory burden towards the demonstration of an individual ‘duty of justice’ towards others. I imagine such redirection can be done within the parameters of a test that still features proportionality as part of its final limb. The state would simply be required to demonstrate—in the course of meeting the first three limbs of the test—that the individual concerned owes a duty of justice to others. Even when such a duty is demonstrated, the question of proportionality would remain relevant, as the specific means by which the restriction is imposed may be subject to the requirement of proportionality. For example, a duty of justice may ground the state’s justification for restricting the public display of obscene material. However, the state is still bound by considerations of proportionality. While it may be proportionate to fine a person for displaying obscene material in a public place, it may be disproportionate to incarcerate that person. Bearing this scheme in mind, I shall argue that a duty-based approach addresses some of the more fundamental normative and political weaknesses associated with the typical proportionality test.
Duties of Justice
The freedom of expression is an individual liberty. According to the Hohfeldian conception of a ‘liberty’, which is both widely accepted and conceptually compelling, a liberty can only be constrained by a competing duty that correlates to another’s claim right. Not all duties correlate to rights. For instance, imperfect moral duties (Mill 1861 ) or ‘duties of charity’ (Goodin 2017 ) do not correlate to rights. For example, a duty to water a plant on behalf of a neighbour does not correlate to the neighbour’s ‘right’ that the plant is watered (Raz 1986 , p. 77). By contrast, an individual’s ‘duties of justice’ are duties that correspond to the rights of others; scholars such as Robert Goodin rightly observe that the state can ‘justifiably compel people to perform’ such duties (Goodin 2017 , pp. 268–271).
Conceptually speaking, duties of justice shape the extent and scope of individual liberty. For example, if X has the liberty to say φ, X has no duty of justice to refrain from saying φ, i.e. no other person has a claim right that X refrains from saying φ. But if X owes Y a duty to refrain from saying λ, X ’s freedom of expression does not extend to saying λ. Only the sphere that is not duty-bound corresponds to A ’s freedom of expression. If individual liberty is constrained by competing duties of justice, it follows that an individual’s ‘liberty’ to express something means they do not owe others a duty of justice to refrain from expressing that thing. If an individual owes others a duty of justice to refrain from expressing something, the individual has no liberty to express that thing. In such cases, the state may be justified in restricting the conduct. A duty of justice is, therefore, not the starting point of the reasoning process, but the endpoint. It is the destination one arrives at when one convincingly demonstrates that the competing interests against the conduct in question are important enough to constitute a claim right against the conduct, thereby imposing on the individual concerned a duty of justice to refrain from the conduct.
What would a duty-based approach to justifying limitations on the freedom of expression look like? The duty-based approach that I have in mind has two features. First, it incorporates the idea of ‘public reason’ to ensure that only publicly justifiable reasons may be put forward by the state when justifying a limitation on the freedom of expression. This element would necessarily strengthen the legitimacy limb of the proportionality test. Only aims that are publicly justifiable would be considered legitimate, and could form the basis for a limitation on the freedom of expression. Aims that societies cannot find agreement on would not be eligible. For instance, the aim of ensuring ‘the glory of Islam’—an aim found in article 19 of Pakistan’s Constitution—would not by itself suffice as a legitimate ground on which the freedom of expression can be limited. Similarly, ‘secularism’, if not an aim shared by many religious minorities in a country, would not in and of itself be valid grounds for limiting the freedom of expression.
Second, the approach I am proposing requires the state to demonstrate a direct responsibility on the part of the individual concerned. This feature of the duty-based approach is consistent with the doctrine of double effect discussed by scholars such as Seana Shiffrin. According to Shiffrin, the double-effect doctrine ‘asserts that it may, sometimes, be more permissible to bring about harm as a foreseen or foreseeable but unintended side effect of one’s otherwise permissible activity than to bring about equally weighty harmful consequences as an intended means or end of one’s activity (emphasis added)’ (Shiffrin 2003 , pp. 1136–1139). A similar principle is found in tort law, under which ‘one would not be held liable for harm…if the harm resulted from deliberate intervention of another agent’ (Marmor 2018 , p. 153). Individual liberty is ultimately shaped by the ‘horizontal’ duties the individual concerned owes others (Knox 2008 , p. 2). These are horizontal to the extent that one individual owes other individuals, or the community at large, a duty to refrain from engaging in intentional conduct that would cause them harm. Therefore, one’s duties of justice are confined to the sphere in which one has direct responsibility for the intended consequences. If, for instance, the violent reactions of others are in fact an intended consequence of the expressive conduct—such as in cases of incitement to violence—it follows that one fails to fulfil a duty of justice to refrain from harming others. Yet if the reactions of others are unintended , it is difficult to maintain that a duty of justice was unfulfilled. One cannot take responsibility for the violent acts of others.
A duty-based justificatory approach is more normatively compelling and politically appealing than a typical proportionality test. The scheme I am proposing addresses the normative weakness associated with the typical proportionality test wherein the special importance we attach to the freedom of expression is often undermined. When certain expressive conduct is presumptively associated with the freedom of expression, the conduct cannot be restricted unless the competing interests at play form a sufficient reason to impose on the individual a duty of justice to refrain from the conduct. The state would need to demonstrate that the individual concerned owes such a duty of justice. A duty of justice, once demonstrated, becomes the placeholder for the publicly justifiable reasons we might have for imposing coercive legal measures against the conduct in question.
The distinction I wish to draw between a duty-based approach and a typical proportionality test can be illustrated as follows. A typical proportionality test would require the state to establish that the interest in the freedom of expression is outweighed by the competing interests at play. A duty-based approach simply rejects the idea that a limitation on the freedom of expression can be justified by claiming that the competing interest is weightier than the individual’s interest in freedom of expression. The freedom of expression, after all, has special normative value, and should not be merely weighed against competing interests. A duty-based approach requires the state to demonstrate that the competing interests are sufficiently weighty to impose a duty on the individual to refrain from engaging in the expressive conduct in question. This justificatory burden is different to a burden to merely demonstrate that the competing interest is weightier than an interest in the freedom of expression. Instead of asking which interest is weightier, a duty-based justificatory burden requires the state to demonstrate that the competing interest is weighty enough to constitute a claim right (held by others), and a duty of justice (owed by the individual concerned). Under a duty-based approach, the weight of the interest in the freedom of expression is not actually compared with the weight of any competing interest. Instead, specific expressive conduct can be excluded (on the basis of public reason) from the scope of the freedom of expression in view of the fact that the individual concern owes others a duty to refrain from such conduct. This approach retains the normative significance of the freedom of expression instead of subjecting it to consequentialist balancing.
A political case can also be made for adopting a duty-based justificatory approach. Such an approach can place a counter-majoritarian check on state authority to impose limitations on the freedom of expression. A typical proportionality test does not have a specific answer to majoritarian infiltration of interests such as national security, public order, public health, and public morals. It does not have a coherent response to common instances in which majoritarian interests are advanced under the guise of these ‘public’ interests. It also often fails to contend with cases in which the state seeks to offload its own positive obligations by limiting an individual’s freedom of expression. Such offloading is common when members of a majority community violently react to expressions that are unpopular or considered offensive. The state can then use limitation grounds such as ‘public order’ to limit the individual’s freedom of expression for presumably ‘causing’ the violent reaction, rather than focus on the violent reaction itself.
A duty-based approach to justifying limitations on the freedom of expression makes it more difficult for the state to advance majoritarian interests or offload its positive obligations. For instance, if the competing interest concerns public order, the state would need to demonstrate that the ‘public order’ interests at stake are actually sufficient reason to constitute a claim right against the expressive conduct in question. It is not at all obvious that an individual merely expressing something offensive owes a duty to refrain from such expression, even when such offence can lead to lawlessness—especially when the individual does not intend to incite lawlessness. Under a duty-based approach, the competing interests that form the basis of a limitation on the freedom of expression must be sufficient to ground in the individual concerned a duty of justice to refrain from the conduct in question.
An illustration may help explain the political case for the duty-based approach. Let us assume an animal rights activist criticises ritual animal slaughter by the majority religious community in the country. The ritual is considered deeply sacred to the customs of the majority community, and the criticism outrages a number of those belonging to the community. There are subsequent calls to arrest the activist and ban such criticism. The state takes no action at first, and as a result, several members of the majority community engage in violent and disruptive protests in public spaces. The state initially arrests some of the perpetrators, but also decides to prohibit the activist and others from engaging in any further criticism of ritual animal slaughter. It justifies the prohibition on the basis that the impugned conduct, i.e. the criticism of animal slaughter, ‘causes’ others to engage in violent and disruptive behaviour, which impairs public order . The state may articulate its justification for the limitation in the following manner: others have an interest in public order, and if certain criticism directly causes persons to engage in acts of public disorder, the state is justified in restricting such criticism. There is no doubt that the interest in public order is important. Such an interest, for instance, grounds a positive obligation in the state to prevent violent and disruptive behaviour. Individuals meanwhile have duties to refrain from such behaviour. But at no point is it apparent that an individual engaging in contentious and unpopular criticism owes a duty of justice (i.e. a duty that directly corresponds to the claim rights of others) to refrain from such criticism—even if such criticism appears to have ‘caused’ others to react violently. A typical proportionality test does not confront this problem, as it does not necessarily require the state to deal with intentionality when limiting the freedom of expression. It would only require the adjudicative body to weigh the individual’s interest in the freedom of expression against the interests of others in public order; a restriction on such criticism could conceivably be justified if the court or tribunal decided that the competing interests outweighed the interest in the freedom of expression. The state’s intention to appease a majority community, or offload its positive obligations, may very well go unchecked.
A duty-based approach directs the state to demonstrate an individual duty of justice, which necessarily incorporates public reason, and the direct responsibility of the individual. In terms of the illustration concerning ritual animal slaughter, to say that interests in public order are publicly justifiable reasons to restrict an activist’s criticism seems unreasonable, as it ignores the fact that it is someone else’s conduct and not the activist’s conduct that actually results in setbacks to public order. Therefore, the state would need to do much better to demonstrate that the activist concerned owes others a duty of justice to refrain from criticising animal slaughter if a limitation on the activist’s freedom of expression in that respect was to be justified. The state is then, to some extent, prevented from offloading its positive obligation (to prevent public disorder) onto the activist. This is the fundamental political value of a duty-based justificatory approach. It is not only a more normatively compelling approach, wherein the special importance of the freedom of expression is better preserved; it is also a politically appealing approach, as it requires the state to justify a limitation on the freedom of expression based on the specific horizontal relationship that exists between the individual and others in society.
Is the Language of Duties Dangerous?
The language of duties can be hijacked by those seeking to diminish the scope of rights. It is therefore natural for the language of duties to attract scepticism and suspicion. For example, the ‘Asian values’ project advanced by political actors such as former Singaporean Prime Minister Lee Kuan Yew relied on a language of ‘duties’ (among other terms such as ‘obedience’ and ‘loyalty’) as a means of deflecting concern for human rights (Sen 1997 ). Moreover, in 2007 and thereafter, the UK witnessed a surge in interest among political actors to frame a new bill of ‘rights and duties ’. The discourse enabled some political actors to call for the replacement of the UK’s Human Rights Act of 1998 with a new bill that focuses both on individual rights and responsibilities. It is therefore natural for the language of duties to attract scepticism and suspicion. But as pointed out by Samuel Moyn, ‘the need to guard against destructive ideas of duty is a poor excuse for ignoring beneficial liberal ones’ (Moyn 2016 , p. 11).
Despite the obvious risks, adopting the language of duties to describe a more robust justificatory approach is valuable, both for methodological and ethical reasons. First, it is not possible to articulate each and every ‘claim right’ in terms of well-recognised ‘human rights’. A person’s claim right that another person refrains from doing something specific cannot always be articulated as a ‘human right’. For instance, a person’s claim right that another person refrains from causing public unrest is certainly a ‘claim right’, but cannot easily be framed in terms of a specific ‘human right’ found in, say, the ICCPR or ECHR. By contrast, it can easily be framed as an interest that both these treaties recognise—‘public order’. A person’s interest in public order, in certain circumstances, is sufficient reason to impose on another person the duty to refrain from expressive conduct that could directly harm that interest. In such circumstances, that person would have a claim right and the other would have a duty of justice to refrain from such conduct. Framing the state’s burden to justify the limitation in terms of ‘rights’ could lead to confusion, as it may prompt us to look for a ‘human right’. Instead, the relevant ‘claim right’ is contingent on the outcome of a reasoning process whereby the importance of the public order interest, in the specific circumstances under consideration, is sufficient reason to impose on an individual a duty to refrain from conduct that directly impairs the interest. This justificatory approach may be better described as a ‘duty-based’ approach because the outcome of the reasoning process is the demonstration of an individual duty of justice to refrain from engaging in the conduct in question.
Second, there is an ethical benefit to reclaiming the language of duties. Such language can help individuals make ethical sense of how their expressive conduct impacts others. David Petrasek correctly observes that the language of duties introduces a certain ‘global ethic’ to modern human rights discourse (Petrasek 1999 , p. 7), which is currently missing. Moyn poignantly notes: ‘Human rights themselves wither when their advocates fail to cross the border into the language of duty’ (Moyn 2016 , p. 10). Such language can then ‘instil in individuals the idea that they should act in ways that support basic shared values’ (Petrasek 1999 , p. 48), and motivate them to be more aware of their ethical obligations to others. Framing a limitation only as a means of advancing legitimate interests, or relying purely on the language of proportionality, cannot offer this ethical dimension. Therefore, the risks associated with the language of duties are ultimately outweighed by its methodological and ethical benefits.
In this article, I evaluated a typical proportionality test when applied to cases concerning limitations on the freedom of expression, and discussed some of the normative and political weaknesses associated with the test. I presented a case for an alternative approach that places duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. This alternative approach does not completely discard the proportionality test; it instead attempts to address some of the weaknesses of the test. I termed this alternative approach a ‘duty-based justificatory approach’ for certain methodological and ethical reasons. I argued that, when individual conduct concerns the freedom of expression, the state’s burden to justify the restriction on such conduct must involve demonstrating that the individual concerned owes others a duty of justice to refrain from engaging in the conduct.
Once we fully appreciate the value of the freedom of expression, we begin to see the sense in requiring the state to demonstrate a duty of justice when justifying limitations on the freedom of expression. Such an approach is normatively valuable, as it better sustains the normative primacy and peremptory value of the freedom of expression. The state would need to compellingly demonstrate that the various interests that compete with the individual’s interest in the freedom of expression are sufficient reason to impose a duty of justice on the individual concerned. It would have to rely on public reason to demonstrate such a duty, and it would ultimately have to prove that the individual concerned has a direct responsibility for any harmful consequences emanating from the conduct in question. Apart from such normative value, we have seen that a duty-based approach can be politically valuable. It places a clearer burden on the state to demonstrate how the individual concerned directly owes a duty of justice to others to refrain from engaging in the impugned conduct. The state is accordingly constrained from advancing certain majoritarian interests, or offloading its positive obligations by limiting the individual’s freedom of expression.
There appears to be a compelling normative and political case to place duties of justice at the centre of the state’s burden to justify limitations on the freedom of expression. Such an approach would not radically depart from the proportionality test, which retains its place as a ‘core doctrinal tool’ (Möller 2014 , p. 31) to determine the permissibility of limitations on the freedom of expression. The alternative approach I have proposed instead adds crucial scaffolding to the typical proportionality test. It sets out to reinforce the state’s burden to confine itself to the realm of public reason, and insists that the state demonstrates that the individual concerned owes others a duty of justice to refrain from the impugned conduct. Such an approach would enhance the state’s justificatory burden when it seeks to limit one of our most cherished values: the freedom of expression.
Wesley Hohfeld’s reference to liberty (what he called ‘privilege’) appears to be analogous to Isaiah Berlin’s conception of ‘negative liberty’, which he describes as the area within which a person ‘is or should be left to do or be what he is able to do or be, without interference’ (Berlin 1969 , p. 2)
‘Lexical priority’ typically refers to the order in which values or principles are prioritised. Rawls argued that basic liberties, such as the freedom of expression, had lexical priority over other interests.
The Kalimah in question is the specific declaration: ‘There is none worthy of worship except Allah and Muhammad is the Messenger of Allah’.
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The author wishes to thank Dr Nazila Ghanea, Dr Godfrey Gunatilleke, Tom Kohavi, Shamara Wettimuny, and Wijith de Chickera for their generous time in reviewing previous versions of this article, and for their valuable feedback.
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Gunatilleke, G. Justifying Limitations on the Freedom of Expression. Hum Rights Rev 22 , 91–108 (2021). https://doi.org/10.1007/s12142-020-00608-8
Accepted : 26 October 2020
Published : 01 November 2020
Issue Date : March 2021
DOI : https://doi.org/10.1007/s12142-020-00608-8
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The right to freedom of expression: The mother of our democracy
WJ van Vollenhoven
BA HED FDE BEd (Hons) MEd PhD (University of Pretoria). Academic manager at the Unit for Open Distance Learning for the Faculty of Education Sciences, North-West University, Potchefstroom, South Africa. Email: [email protected]
This paper explores student-teachers' understanding of the right to freedom of expression in education. Analyses of case law and legal principles affirm that the right to freedom of expression is an essential prerequisite to protect and promote democracy. Based on qualitative research, the empirical evidence indicates that although student-teachers are aware of the fact that the right to freedom of expression is not absolute and may be limited, they have a superficial knowledge of the application of this right. Student-teachers have a sense of the importance of the right to freedom of expression in a democracy, but they have not yet internalised the mechanism or process of balancing the right in praxis. This does not bode well as the school system will fail to be a market place of ideas. In order to enable learners to reach their full potential as critical thinkers and autonomous citizens in a developing democracy, it is imperative that teachers should understand and master the application of the right to freedom of expression in schools.
Keywords: Democracy, human rights, freedom of expression, transformative curriculum, teaching-learning approaches, student-teachers
The right to freedom of expression, viewed as a pillar of democracy, is clearly addressed in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) of 1976. 1 The freedom of expression, opinion and information is also protected in Article 19 of the Universal Declaration of Human Rights (UDHR) of 1948 2 - which is a clear indication that freedom of expression is viewed internationally as a fundamental right and a prerequisite in any democracy. Moreover, it is universally accepted that freedom of expression creates a marketplace of ideas and ensures individual development and self-fulfilment. 3 In South African courts, too, this right is viewed as central to a constitutional democracy given the extent to which it supports other rights. Before we continue with the argument; it is necessary to define "democracy" at this point.
Du Toit 4 defines "democracy" as "rule by the people", which he interprets as
...all citizens shall participate on an equal basis in public decision-making on vital aspects of all common affairs, including social life, the economy, morality and education.
The core of a democracy is that all citizens have a right to participative decision-making. 5 Simirlarly, Coetzee and Le Roux 6 agree that:
... democracy can be regarded as a system of government in which the ruling power of the State is legally vested in the people: government of the people, by the people, for the people.
In an article published in the Journal of Education, Van Vollenhoven, Beckmann and Blignaut 7 argue that democracy is being suppressed in SA schools because the right to freedom of expression, as a fundamental right in a democracy, is not nurtured in the schooling system. Furthermore, according to Van Vollenhoven's findings, learners have a very poor understanding of the right to freedom of expression - let alone the educational implications thereof. 8 It seems that school authorities with their authoritarian leadership styles - a direct consequence of the power such a position previously yielded - are still violating the right to freedom of expression. Given this situation and the desire to instil the right to freedom of expression and, in so doing, to develop the principles of democratisation, the question is raised as to how a balance can be struck between this right and lived educational practice. Unfortunately, current practices counter the development of the right to freedom of expression and, in so doing, also the development of democracy. If critical and independent thinking amongst both the leadership and the followers in education is to be encouraged, respect for freedom of expression will have to be instilled. Crucially, student-teachers need to acquire the knowledge and develop the skills to apply the right to freedom of expression in their training and, eventually, in their school praxis.
In an NRF-funded project, "Human Rights Literacy: A Quest for Meaning", 9 the research team set out to explore what human rights literacy entails with the intention of establishing and developing an improved transformative curriculum and teaching-learning approaches. 10 Using a rhizomatic design, qualitative and quantitative research data was collected by means of three different methodological processes: a walkabout, a survey, and small focus-group discussions. 11
Arguing that if education is to be the custodian of a democratic society in which the fundamental right to freedom of expression is a prerequisite, this paper will focus on the data collected during focus-group discussions where student-teachers responded to a scenario dealing with the right to freedom of expression.
It was indicated above that during the first ten years of the new democracy, this was clearly not the case. Now, 20 years after the institution of a democratic dispensation in South African schools, the aim of this article is to attempt to establish whether this core right is better understood and implemented.
In 1994 South Africa became a democracy with an advanced Constitution which entrenched human rights in its Bill of Rights. When South Africa's young democracy brought an end to years of systematic discrimination and oppression, 12 the expectation was that education would play a major role in the process of moving the country towards a culture of human rights. Twenty years later, as South Africans are still battling to instil or even define the concept "democracy", and given that teachers have a professional duty to promote democracy in schools as well as in broader society, an interrogation of the role teachers perform in ensuring the survival of democratic principles is warranted. 13
It is against this background that this paper will explore student-teachers' internalisation and application of the right to freedom of expression, which is viewed as a core right in any democracy. This article draws from data elicited in a research project titled "Human Rights Literacy: A Quest for Meaning", 14 that explored South African student-teachers' conceptualisation of human rights. The article starts with a theoretical overview, whereafter the focus will shift to a conceptual framework which explores freedom of expression as a core right in a democracy, which will be followed by an explanation of the empirical study's methodology and an analysis of the data.
3 The right to freedom of expression
The Constitution of 1996 brought about a move away from an authoritarian culture to one of openness or transparency, accountability and justification of actions. Freedom of expression is one of the civil freedoms guaranteed in section 16 of the Constitution: 15
(1) Everyone has the right to freedom of expression, which includes: (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
The word "includes" indicates that although mention is made of only four aspects of this right, it could encompass other aspects as well. The Guidelines for Consideration of Governing Bodies in Adopting a Code of Conduct 16 define freedom of expression as more than freedom of speech, thus including also the right to seek, hear, read and wear. It therefore extends to encompassing all forms of outward or nonverbal expression, eg the selection of clothing and hairstyles. 17
In essence, section 16(1) protects freedom of expression, including the contents thereof and those to whom it is addressed. 18 The protection of this right is important in South Africa. For many years, the majority of citizens were denied this right to freedom of expression, and they could even be sued for speaking out against government. 19 In this bureaucracy, even learners were taught not to differ and not to question anything educators or authorities told them. 20 Therefore, all citizens - even educators - were not taught to think critically, to question whatever they were told, or what was happening to them. The authoritarian culture withheld them from speaking out or differing from authorities.
Subsections 16(1)a-d particularly include protection for the freedom of the press and media (1a), the freedom to receive or impart information and ideas (1b), artistic creativity (1c) and academic freedom and scientific research (1d). Section 16(2) specifies under which circumstances the right afforded in section 16(1) can be excluded. According to section 16(2), this right can be limited when it is used as propaganda for war (2a), to incite imminent violence (2b) or as a form of hate speech (2c). It is important to realise that even though certain ways of expression are mentioned in section 16(1), they are definitely not singled out for greater protection than other forms of expression. 21 Although the right to freedom of expression is internally limited in section 16(2), it can also (like any other right) be limited under the limitation clause. 22
4 Limitation of the right to freedom of expression
In South Africa, which is characterised by a multicultural diverse society, hate speech - as excluded by section 16(2)(c) - needs to be addressed. In line with this, the publication of words or behaviour will be prima facie wrongful where the publication is contrary to the boni mores of society. 23 In this regard, international law could guide South African courts in implementing legislation, an example being the Canadian Supreme Court, which has also accepted the legitimacy of controls to hate speech. 24 Section 16(2) of the Constitution excludes the advocacy of hatred based on race, ethnicity, gender and religion from the ambit of the right to freedom of expression when this amounts to incitement to cause harm. Hate speech or defamation can cause emotional damage and will be a violation of the individual's right to human dignity. 25 Elements of an action for defamation are the wrongful and intentional publication of a defamatory statement. 26 It is, therefore, important to guide young learners in executing their right to freedom of expression so that they do not infringe upon the fundamental rights of another person by using hate speech. This right is not mentioned in the South African Schools Act 84 of 1996 (SASA). Freedom of expression will hence be viewed directly via the Constitution as well as through the value system that underpins the Constitution and the South African democracy.
5 A pillar of democracy
The right to freedom of expression, viewed as a pillar of democracy, is clearly addressed in Article 19 of the ICCPR of 1976, which has been ratified by South Africa. 27 Freedom of expression, opinion and information is also protected in Article 19 of the UDHR of 1948, 28 which is a clear indication that freedom of expression is viewed internationally as a fundamental right and a prerequisite in any democracy. The intention of the UDHR, which has also been ratified by South Africa, is to ensure that all human beings "shall enjoy freedom of speech and belief and freedom from fear" as common people of the world 29 and that their human rights should be protected by the rule of law. With this preamble, the nations of the world agree that the right to freedom of speech is the core of a democracy and individual freedom.
Given that freedom of expression is regarded as a prerequisite to and one of the core rights in a democracy, 30 this right is treated as if it were a constitutionally protected freedom even in countries without a constitutionally entrenched Bill of Rights. Beatty 31 concurs and describes freedom of expression as the value that underpins liberal-democratic government. For example, Clayton and Tomlinson 32 as well as Turk and Joinet 33 indicate that freedom of expression was regarded as a "core right" even before the advent of the Canadian Charter of Rights and Freedoms in 1982 - currently Part 1 of the Constitution of Canada. 34
However, a democratic society is continuously in the process of change, will have restrictions on rights and freedoms, and its procedures will frequently be questioned. This is ensured by the right to freedom of expression, which is therefore viewed as a prerequisite to democracy. Consequently, democracy can be viewed as a "tragic" political system. As Castoriadis says, democracy is "the only regime that openly faces the possibilities of its self-destruction by taking up the challenges of offering its enemies the means of contesting it". 35 Similarly, Wood 36 argues that freedom of expression is regarded as an essential pillar of a free and democratic society. In line with this, Shyllon 37 argues that the free exercise of this right is important in highlighting poor service delivery and exposing corruption, maladministration and the mismanagement of public funds. Although freedom of expression is regarded as a core human right in a democratic society, even this right can be limited.
6 A prerequisite, yet not absolute
In the USA, for example, the First Amendment's guarantee of free speech has never been absolute. Although the United States Supreme Court has characterised freedom of expression as a "preferred right", some forms of speech such as defamation, fighting words and obscenity fall outside the protection of the First Amendment.
Locally, the value system that underpins the Constitution was developed from South African history. When interpreting the Bill of Rights, one must be guided by this value system. This thought was expressed by Judge Ismail Mahomed 38 in the Makwanyane case:
...the South African Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos.
Against this background to freedom of expression, which is seen as crucial in a democracy but not absolute, it is imperative to determine whether student-teachers in South Africa as a young democracy understand and have internalised this right so that they can apply it in praxis in order to guide young nation builders to develop the skill and competency to use and respect their right to freedom of expression, as intended in a free democracy.
Freedom of expression is not the entitlement of any political system or ideology, but a general human right guaranteed in international law. It is regarded widely as one of the core rights and essential foundations and freedoms of a democracy. 39 In Lehman v. Shaker Heights 40 the court held that freedom of expression invites dispute. This is vital for developing a democracy.
Judge Cardozo defined this concept as "... the matrix, the indispensable condition of nearly every other form of freedom". 41 In Palko v Connecticut, 42 freedom of expression is viewed as a prerequisite for a democratic society and for participation in the democratic process, 43 and also as necessary for the development of the individual, 44 a notion which also features in McIntyre's summation of the case the Retail, Wholesalers and Department Store Union brought against Dolphin Delivery Ltd in the Canadian Supreme Court in 1986. 45 Freedom of expression is not, however, a creature of the Canadian Charter of Rights. It is one of the fundamental concepts that have formed the basis of the historical development of the political, social and educational institutions of Western society. Representative democracy, which is by and large the product of the free expression and discussion of varying ideas, depends on the maintenance and protection of freedom of expression.
Turk and Joinet 46 indicate that the right to freedom of expression is a right tending towards the absolute. In fact, the right to freedom of expression enables human beings to express new ideas and discoveries which promote scientific, artistic or cultural progress. 47
In a similar vein, Clayton and Tomlinson 48 , Van Vollenhoven 49 and Mawdsley, Smit and Wolhuter 50 are of the opinion that the right to freedom of expression enjoys special protection on three different grounds: it serves as the marketplace for ideas, which promote the search for the truth; it ensures individual development and self-fulfilment, which can be derived from the right to human dignity and to equality of concern and respect; and it secures the right of the citizen to participate in the democratic process. Emerson, 51 a former professor at the Yale Law School, put forward a fourth premise, namely that freedom of expression is also a prerequisite for maintaining the balance between stability and change in society. It is specifically with regard to this that teachers should understand how the right to freedom of expression should be balanced in school and in wider society.
These four premises, which enhance the claim that freedom of expression seems to be a core right in a democracy, will now be discussed.
6.1 A market place of ideas
Freedom of expression creates a marketplace of ideas and ensures individual development and self-fulfilment. 52 The right to freedom of expression enables human beings to express new ideas and discoveries which enhance scientific, artistic or cultural progress. This can be seen as the foundation of the "quest for truth" paradigm. Clayton and Tomlinson 53 define the marketplace of ideas as a collection of ideas used to promote the search for truth. The epistemic function of education, as confirmed by Judge Holmes in Abrams v. US, 54 is realised in this search for truth:
[C]ompetition among ideas strengthens the truth and rules out error; the repeated effort to defend one's convictions serves to keep their justification alive in our minds and guards against the twin dangers of falsehood and fanaticism; to stifle a voice is to deprive mankind of its message, which we must acknowledge might possibly be more valuable than our own deeply held convictions ...
One should be able to think, speak and create ideas, even if what is expressed is "wrong". Unpopular views must be uttered and, as postulated by Alston, 55 will either be enhanced or defeated by public opinion (education) rather than by censorship, which would impair creativity, ideas, individual development and democracy.
6.2 Individual development
The creation of a marketplace of ideas 56 helps individuals to attain self-fulfilment. 57 As such, Currie and De Waal 58 argue that the denial of this right would be inhuman because the ability to express oneself is an essential human activity. As people become involved in the "marketplace of ideas" in the search for truth, they become involved in their individual development, which underpins freedom of expression and vice versa. The right to express own opinions, even if these differ from the opinions of others, is essential for individual self-fulfilment. 59 In this regard, Sachs 60 states that the right to freedom of expression allows individuals to be who and what they are. If persons' right to express themselves is violated, they will be restrained from developing to their fullest potential. The right to freedom of expression of the individual person should outweigh the interests of society 61 but may be limited if it poses a potential risk to society.
The balance between individual development and participation in democratic society is achieved through education in schools. 62 Schools need to teach all learners about their right to freedom of expression to maximise not only their personal potential but also the fullest potential of their society. It is necessary to enhance and respect freedom of expression in order to develop and encourage critical and independent thinking.
6.3 Self-fulfilment: Participation in the democratic process
Clayton and Tomlinson 63 and Gordon 64 regard freedom of expression as a prerequisite for participation in the democratic process. This notion was established by the European Court in the case Handyside, brought against the United Kingdom. 65 One could argue that freedom of expression is essential to the right of citizens to participate in the democratic process. People must be able to make political choices and, therefore, they need to have access to information and to different viewpoints. The right to freedom of expression is related to freedom rights, as well as political rights. Turk and Joinet 66 also argue that the case law of the European Court of Human Rights confirms that this right constitutes one of the basic foundations of a democratic society.
Alston 67 describes the democratic process as political and asserts that the political process can never be democratic without the openness to hearing everything and allowing differing views to be expressed. The accommodation of different views is socially acceptable and creates stability in a society. Different and even unpopular views enhance critical thinking, which is a prerequisite for a democratic society. The public school, as the education mentor for learners in a democracy, becomes a forum where children are guided to adulthood and to fulfil their place in a democratic society. Prinsloo 68 and Albertyn and Davies 69 aver that the Bill of Rights and its implication ought to guide both legislation and the application thereof in a democracy. Section 7(1) of the Constitution provides the Bill of Rights as a cornerstone of democracy in South Africa. 70 It enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom.
Wielemans 71 points out that education attempts to solve problems in society. There is a movement back to a holistic approach where the school, instead of being a mere institution of learning, takes the shape of an educational society. 72 Similarly, the DoE set out the purpose of a General Education and Training Certificate (GETC) as equipping "learners with knowledge, skills and values that will enable meaningful participation in society ..." 73 Such participation is feasible only if one has developed the skill of critical thinking or reflection.
In a democracy, people listen to and tolerate opinions with which they disagree. 74 Freedom of expression ensures that governments are unable to abuse democratic or fundamental rights. In the case Holomisa brought against Argus Newspapers Limited in 1996, Cameron J stated that "[ t ]he success of our constitutional venture depends upon robust criticism of the exercise of power. This requires alert and critical citizens". 75
Wielemans 76 refers to this participation in the democratic process as the instrumental task of the school. This implies that the school aims to guide learners to their fullest potential in order to enhance the optimal functioning of society. For this to occur, the right to freedom of expression should be respected. He contends that since the contemporary school tends to be the only entity in modern society that still has the role of disciplining; it functions as a public forum where the youth (learners) are challenged to agree or disagree. The school increasingly becomes a social forum for learners in which to interact with one another and to share experiences. 77 When they do so they simultaneously shape their own lives as individuals and strive toward a democratic society.
Although Gordon 78 concurs that the "epistemic" function of (public) education is to enable learners to acquire the skills necessary to become knowledgeable and productive participants in a democratic society, he also contends that it is the duty of government to provide education so as to furnish citizens with the requisite facts relevant to political decision making and to train them to draw conclusions from those facts. 79 The epistemic function of education is to develop self-controlled citizens who can participate actively in a common system of discourse. 80 Gordon concludes that citizens who have developed to their fullest capacities and fulfilled their own interests are less likely to call for political change, will be economically productive and will maintain a higher standard of living. Hence the government's economic interest in education.
South African court cases that dealt with freedom of expression in the school or in an educational context (Antonie, Pillay, Hamata, Ngubo and Le Roux) can be categorised into two factual variants, namely instances where the expressions have not been harmful, and instances where the expressions have been harmful. 81 If the exercise of freedom of expression neither harms nor interrupts school discipline, it should be respected. Conversely, schools may limit the right to freedom of expression if the expression has infringed a person's right to dignity or has caused harm to others or the school.
6.4 Maintaining the balance between stability and change in society
If persons are not allowed to air their point of view, that viewpoint will never be tested. It is in free discussion, which prevents society from becoming stagnant, that people's own prejudices and pre-conceptions are tested. 82 Freedom of expression is balanced in societies in order to protect other values such as public order, justice and the personal rights of others. 83 The right to freedom of expression may also be limited in terms of the ICCPR 84 and in the interest of national security, public order, safety, health and morals.
In a democracy, the population must be included in civic life. The right to freedom of expression is related to freedom of association and assembly, and these three freedoms are essential in a democracy. 85 In the Turrell case, which arose out of learner protest, Van Zyl J emphasised the importance of freedom of expression in a democracy, stating: "freedom of speech and freedom of assembly are part of the democratic rights of every citizen of the Republic and Parliament guards these rights jealously ..." 86 It is significant that this statement was made before South Africa had a new Constitution or democratic government. The right to freedom of expression as the core of democracy and human rights was therefore acknowledged by the courts even before South Africa became a democracy.
Given this importance of the right to freedom of expression in a democracy, it is crucial to teach learners how to use this right so that they may be enabled to develop optimally as individuals and to fulfil their societal responsibilities. Buckingham 87 suggests that "educators must ... prepare [learners] for a participatory form of citizenship which can function across a whole range of social domains". This is the schools' instrumental task. 88 If freedom of expression is important to ensure the fulfilment of every individual, it is vital to educate toward that end. Andsager and Ross 89 aver that courses in freedom of expression enhance people's understanding of their right to freedom of expression. Such courses could also enhance a citizenry, making it more supportive of democratic and expressive rights.
7 Research process
In a project titled "Human Rights Literacy: A Quest for Meaning", 90 the research team explored what human rights literacy entails and aimed to establish and develop an improved transformative curriculum and teaching-learning approaches. 91 Using a rhizomatic design, qualitative and quantitative research data was collected by means of three different methodological processes: a walk-about, a survey, and small focus-group discussions. 92 This article focuses only on the qualitative data collected in the focus-group discussions, explaining the process followed for this strategy in the paragraphs to follow.
As a first step in the selection of the participants, the research team borrowed from stratified and cluster sampling to purposively select six university sites (campuses) that we considered best suited to provide information for the purpose of the research objectives. 93 The six sites represented a mixture of rural and metropolitan campuses and reflect the linguistic, religious, ethnic and cultural diversity of student-teachers across South Africa.
First- and fourth-year students enrolled for B Ed programmes at the six sites (n=4,953) were invited to participate in the survey. A total of 1,086 students (551 first years and 535 fourth years) participated in the survey, during which they could indicate whether or not they were willing to participate in follow-up focus-group discussions. 94 A snowball sampling strategy was employed to recruit participants for the focus groups. We issues invitations to students on each of the six survey sites who had, during the survey, indicated their willingness to participate in focus groups. Some of these students, in turn, invited other B Ed students from their year-groups, who voluntarily joined the discussions. 95
Group size varied between three and nine participants. Larger groups were avoided since the topics of discussion were complex and sometimes sensitive. 96 Sixty-eight students participated in the focus-group discussions. Twenty-nine participants were first years while 39 were fourth-years. Twenty-seven out of the total 68 participants were male (14 first years and 13 fourth years), while 41 females (15 first years and 26 fourth years) participated. 97 Participants were between 18 and 28 years old and spoke six of the 11 official South African languages. 98
The purpose of the small focus groups was to elicit dialogue about human rights, probe participants' conceptions and ontology and disrupt their fixed meanings and understandings. 99 The unstructured nature of focus-group discussions allows for conversation to flow and develop, supporting lively discussion, free expression and dialogue on conflicting ideas or complex issues as they arise.
Three teams of researchers visited different sites to conduct the focus group interviews. A total of 21 focus-group sessions with 13 different groups of students were held. Seven of the groups met twice, five met only once and one group (S6Y1) met three times. 100 Separate focus groups were held with first years and fourth years, except for one meeting (S6Y1&4M2) on Site 6, which combined first and fourth years. 101
Pre-selected scenarios were used as a form of probing in follow-up meetings. Four different scenarios drafted by the research team sketched fictitious events regarding diverse socio-cultural, gender and religious contexts, including possible human rights violations within an educational context. This paper reflects only on the data from the scenario dealing with freedom of expression.
The focus-group discussions were audio-recorded and transcribed before being analysed by making use of Atlas Ti. By examining the data through the lens of a legal framework for applications of the right to freedom of expression, the data was allowed to crystallise as it was brought into conversation using our theoretical lens.
8 Student-teachers' application of the right to freedom of expression
This section focuses on one of the scenarios discussed in the focus-group interviews to illustrate participants' perceptions, knowledge and attitudes in their application of the right to freedom of expression in practice. The enquiry focused on the way student-teachers understand and apply the right to freedom of expression as internalised to enhance a market place of ideas, individual development, participation in the democratic process and maintaining the balance between stability and change in society and schools.
The paper will indicate that although the participant student-teachers had knowledge about human rights and the challenges of applying it in practice, the knowledge was at times superficial and uncertainties about the praxis still existed.
Two themes emanated from the data: The first theme related to student-teachers' understanding and perceptions about the right to freedom of expression; the second related to the tension between the school as custodians of the democracy and the image of the school. Selected verbatim quotes from focus-group transcripts will be used to illustrate how these themes were defined and to compare them to the theoretical understanding of human rights literacy with regards to the right to freedom of expression as the core right in a democracy. The reference style of these quotes is as follows: S1Y4M1, where S refers to the site number (1 to 6), Y refers to the year group (first or fourth years) and M refers to the meeting number of a specific group (first or second meeting).
9 Understanding the right to freedom of expression
In line with the literature, the participants acknowledged that the right to freedom of expression was a prerequisite for individual development and self-fulfilment. This sentiment was echoed amongst participants. One participant stated that "...the right to be heard is also the right to be taken seriously". (S2Y4M2) Therefore, it was of vital importance that schools need to create an environment where learners are allowed to express themselves. According to this participant, "...the school was supposed to listen to them, and allow the learner[s] to express themselves". (s2y4m2) Student-teacher participants also understood that if learners were guided and allowed to give their own opinions, critical thinking - which is one of the building bricks of a democracy - would be enhanced:
...at university level learners are encouraged to be critical of things and not take things at face value. Even if you read it, you don't just read and take it as it is. Even if it is someone's view. ( s 2 y 4 m 2)
While the student-teachers acknowledged the fact that any opinion has the potential to offend someone, they did not clearly understand the discourse that everyone has the right to freedom of expression even if what is said is untrue, and that freedom of expression can be limited the minute what is said defames another:
She was just honest in saying how the school really is. ( S 1 Y 1 M 2) So, when do you truly have freedom of speech, when you say something about yourself? And ... I mean, I will criticise myself, sometimes, but I will not talk bad about myself when I am with other people. So I will open my mouth when something is not right and if you want to punish me for it, then I feel where is that right, because then that right doesn't count? And then I get angry, ... ( s 3 y 4 m 2)
Many of the student-participants argue that as long as what you say is the truth, it would be acceptable.
You should investigate and see whether the learner is speaking the truth. If the learner is not speaking the truth, then you are allowed to give some sort of punishment. ( s 1 y 1 m 2)
This indicates that these student-teachers might not yet have comprehended the nature of the market place of ideas. The fact that they thought that unpopular or untrue views would be "punished would prevent creativity, the formation of ideas, individual development and the flowering of a true democracy". In contrast with the notion that untrue expression might be punished, some participants were aware that the right to freedom of expression guarantees that there will be no punishment even if what one says differs from the opinions of others: "You should not penalise me if I say that I am not in support of this thing and provide valid arguments on it". (s1y4m2) In line with this, some participants understood the obligation this right imposes on learners in a democracy to speak-out if schools are not acting correctly - "It needs to be known. We need professionalism in the working environment" (s1y4m2) - and that learners should not be indoctrinated when speaking out: "So I think they were wrong because they cannot channel my thinking". (S1Y4M2) Some student-teacher participants acknowledged the fact that freedom of expression implies the possibility of change:
Yes, how does change happen if something like this does not happen? So maybe she just wanted ... that something could happen and change could happen at the school. ( s 3 y 4 m 2)
The participating student-teachers understood that the right to freedom of expression would be balanced by the right to human dignity and that it was internally limited in terms of Article 16(2) if the expression boiled down to defamation or hate speech:
I did not bad mouth him. I did not use unpleasant words. I only gave my opinion. (s3y4m2) But freedom of expression, you can only stop it when it's about racism or hatred or when it hurts people, but this didn't hurt anyone. ( S 4 Y 4 M 2)
The latter quotation clearly illustrates that although the participants were aware of the inherent limitation to the right to freedom of expression if hate speech is used, the notion that any opinion does have the potential to hurt is not comprehended by everyone.
This right is also viewed by South African courts as central to a constitutional democracy to the extent to which it supports other rights.
10 The tension between the school as a custodian of democracy and the image of the school
As custodians of democracy, schools are the places where all children, but particularly vulnerable learners, should be steered and guided in the process of critical thinking to develop the skills and competencies they need to fulfil their role as fully developed citizens. Learners should therefore be trained to think critically and to speak their mind if they disagree, even if what they say is not the truth. Unfortunately, so much emphasis is placed on the image of the school that the hidden curriculum or unintended message is that free expression needs to be limited in order to preserve the image of the school:
Most of the schools, it is about the school's image and the image that should be portrayed...but what people hear is never outside. Outside is clean, but it should only stay inside and people are not allowed to hear what is going on inside. ( s 3 y 4 m 2) Then I tell them but there is violence; there is so much violence there that no one is allowed to say what is happening, and that is what it is all about. ( s 3 y 4 m 2).
Some of the student-teachers were therefore of the opinion that learners should first talk about negative things at school before revealing these in public media. They stressed loyalty to the school as a positive quality, thought the image of the school enjoyed priority, and failed even to raise the question of whether the expression would boil down to hate speech or not:
But the first thing she should have done is to go and speak to someone at the school, and if they were doing nothing about it, then go to the press. ( s 1 y 1 m 2)
On the other hand, some student-teacher participants understood that schools should not indoctrinate learners as this would work against the whole notion of critical thinking in a democracy. In this regard, one participant felt that the school could not punish learners if the school had asked for their opinion: "So I think they were wrong because they [the school] cannot channel my thinking." ( s 1 y 4 m 2) This student-teacher participant went on saying, "[y]ou should not penalise me if I say that I am not in support of this thing and provide valid arguments on it". ( s 1 y 4 m 2) Some student-teachers understood the role of the right to freedom of expression: "So the school was supposed to listen to them and allow the learner[s] to express themselves." ( s 1 y 4 m 2) In practice this is not the case, as indicated by another student-teacher participant: "Because they say it is your freedom of speech, but the moment you say something, they [the school] are out to get you." ( s 1 y 4 m 2)
Some student-teachers are aware of the fact that the school's reaction would depend on the platform that is used for free expression. The fact that they say that as a citizen one may speak one's mind but as member of the school not is an indication of how children at school are still indoctrinated into believing that the image of the school is supreme to the Constitution. This finding echoes the results from a study where learners' understanding of their right to freedom of expression was investigated. 102
Schools then are surely working against the development of the skills and competencies essential to the exercise of the right to freedom of expression, and this phenomenon is a death knell for democracy and its developments:
...this learner operated in different levels, in different contexts. The learner wrote the article as a member of the community and she wrote the assignment as a member of the school. And one other thing - we should take into consideration if they say this thing the learner crossed the line. If we can go to reality. We know that the teachers and the principal's conduct in the school is superior to that of the learners. You know, the learners are inferior. Think back to when you were still a student -you will be afraid to say something in school. For example, I could not challenge my teachers and say: you are misconducting because of this and this. There will be a lot of things happening around that but if maybe she did this thing by intention, because she knew the community and the members of parliament, the minister will protect the child. But if this was a situation happening or dealing in the school level only. There will be a problem there... ( s 1 y 4 m 2)
Seemingly, student-teacher participants still experience a tension between speaking out as critical thinkers enhancing democracy and protecting the image of the school. There is also a fine line in praxis between "washing" factual "dirty laundry" and defamation. This tension in itself is the poison killing our democracy and is clearly visible when this participant states: "So that the dirty laundry of this school, the so called perfect school, has been revealed. "( s 1 y 4 m 2) In this sense, instead of enhancing democracy, this skewed tension throws doubt not only upon the survival of democracy but also upon the preservation of human rights and the integrity of those who apply them, as suggested by one participant:
But it is like I said: It gets applied when it wants to be applied. It is like when I am in a powerful position, I will apply the rights I want to apply, disregarding what you feel. ( s 3 y 4 m 2)
From the data presented it is evident that student-teachers have a superficial knowledge of the right to freedom of expression. They are aware of the fact that this right is not absolute and may be limited. It seems as if they have a sense of the importance of the right to freedom of expression in a democracy, but they have not yet internalised what they sense, and they struggle to balance the right in praxis. Interestingly, this data confirms that of Bronstein, Glaser and Werbeloff, 103 who found the same phenomenon amongst law students. Their study found that while most student respondents support general statements in favour of free expression, their commitment to this value seems to buckle under the stress of hard test cases.
The mean levels of student support for free expression vary widely across items and mask wide variations of opinion amongst students. The fact that student-teachers, the custodians of democracy, are still not able to internalise and apply the right to freedom of expression in practice indicates that our school system still fails to be a market place of ideas, and is incapable of developing individuals as critical and individual thinkers to reach their fullest potential and to be citizens in a developed democracy. One can infer from the findings that the education system is failing to teach learners how to engage constructively in a democracy. In fact, the way that this core right, as a prerequisite for democracy, is still being misapplied after 20 years of democracy, seems to pose a threat to the survival of democracy in South Africa.
Abrams v United States 1919 US 250 616
Cele v Avusa Media Limited 2013 2 All SA 412 (GSJ)
Handyside v United Kingdom 1976 24 A 737 (EHRR)
Holomisa v Argus Newspapers 1996 2 SA 588 (W)
Lehman v City of Shaker Heights 1974 418 US 298
Palko v Connecticut 1937 302 US 319
R v Keegstra 1990 3 697 (SCR)
RWDSU v Dolphin Delivery Ltd 1986 18720 Canada 580 (BC) S v Makwanyane 1995 3 SA 391 (CC) S v Turrell 1973 1 SA 248 (CC)
Constitution of Canada, 1982
Constitution of the Republic of South Africa, 1996
International Covenant on Civil and Political Rights (1966) Universal Declaration of Human Rights (1948)
GN R776 in GG 18900 of 15 May 1998
LIST OF ABBREVIATIONS
DoE Department of Education
ESR Economic and Social Rights
GETC General Education and Training Certificate
IAMCR International Association for Mass Communication Research
ICCPR International Covenant on Civil and Political Rights
IJMCS International Journal of Media and Communication Studies
J L & Educ Journal of Law and Education
JMCE Journalism and Mass Communication Educator
JSR Journal for the Study of Religion
NRF National Research Foundation
RWDSU Retail, Wholesalers and Department Store Union
SAELPA South African Education Law and Policy Association
SAJE South African Journal of Education
SAJHR South African Journal of Human Rights
SAQA South African Qualification Authority
SASA South African Schools Act
UDHR Universal Declaration of Human Rights
1 Article 19 of the International Covenant on Civil and Political Rights (1966). 2 Article 19 of the Universal Declaration of Human Rights (1948). 3 Abrams v United States 1919 US 250 616; Clayton and Tomlinson Privacy and Freedom of Expression; Currie and De Waal Bill of Rights Handbook. 4 Du Toit 1993 Suid Afrikaan 5. 5 Morrow Chains of Thought. 6 Coetzee and Le Roux 1998 Tydskrif vir Chrssteiike Wetenskap 5. 7 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 8 Van Vollenhoven Learners' Understanding of their Right. 9 Roux Human Rights Literacy. 10 Roux and Du Preez 2013 http://hreid-hrlit.blogspot.com . 11 Becker, De Wet and Parker 2014 JSR; Roux Human Rights Literacy. 12 Parker 2014 JSR. 13 Smit and Oosthuizen Fundamentass of Human Rights 74. 14 Roux Human Rights Literacy. 15 Section 16 of the Constitution of the Republic of South Africa, 1996 (the Constitution). 16 Section 4.5.1 in GN R776 in GG 18900 of 15 May 1998. 17 Van Vollenhoven Learners' Understanding of their Right. 18 Malherbe "Draft Chapter". 19 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 20 Mazibuko Sowetan 6. 21 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 22 Section 36 of the Constitution. 23 Neethling, Potgieter and Visser Law of Personality. 24 R v Keegstra 1990 3 697 (SCR). 25 Section 10 of the Constitution. 26 Ceee v Avusa Media Limtted 2013 2 All SA 412 (GSJ). 27 International Covenant on Civil and Poittical Rights (1966) (ICCPR). 28 Universal Declaration of Human Rights (1948) (UDHR). 29 Preamble of the UDHR. 30 Van Vollenhoven Learners' Understanding of their Right., 31 Beatty Constitutional Law. 32 Abrams v United States 1919 US 250 616; Clayton and Tomlinson Privacy and Freedom of Expression; Currie and De Waal BUI of Rights Handbook. 33 Türk and Joinet "Freedom of Expression" 38. 34 Para 1 of the Constitution of Canada, 1982. 35 Türk and Joinet "Freedom of Expression" 38. 36 Wood 2001 SAJE 142-146. 37 Shyllon 2012 ESR Review 7-10. 38 S v Makwanyane 1995 3 SA 391 (CC) para 262. 39 Handyside v Untted Kingdom 1976 24 A 737 (EHRR) para 51; Marcus 1994 SAJHR 140-148; McQuoid-Mason et al Human Rights for All, Sachs Advancing Human Rights, Tribe American Constitutional Law. Also see Preamble of the UDHR. 40 Lehman v Ctty of Shaker Heights 1974 418 US 298. 41 Lehman v Ctty of Shaker Heights 1974 418 US 298. 42 Pakko v Connect/cut 1937 302 US 319 para 327. 43 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 44 Alston Constitutional Right to Freedom of Expression. 45 RWDSU v Dopphnn Detivery Ltd 1986 18720 Canada 580 (BC). 46 Türk and Joinet "Freedom of Expression" 38. 47 Coetzee and Le Roux 1998 Tydskrif vir Chrssteiike Wetenskap 5. 48 Clayton and Tomlinson Privacy and Freedom of Expression 112. 49 Van Vollenhoven Learners' Understanding of their Right. 50 Mawdsley, Smit and Wolhuter 2013 De Jure 132-161. 51 Emerson System of Freedom of Expression. 52 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 53 Clayton and Tomlinson Privacy and Freedom of Expression 112. 54 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 55 Alston Constitutional Right to Freedom of Expression. 56 Clayton and Tomlinson Privacy and Freedom of Expression 112. 57 Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 58 Currie and De Waal Bill of Rights Handbook. 59 Van Vollenhoven Learners' Understanding of their Right. 60 S v Makwanyane 1995 3 SA 391 (CC) para 262. 61 Pako v Connecticut 1937 302 US 319 para 327. 62 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 63 Clayton and Tomlinson Privacy and Freedom of Expression 112. 64 Gordon 1984 J L & Educ 523-579. 65 See n 39. 66 Türk and Joinet "Freedom of Expression" 37. 67 Alston Constitutional Right to Freedom of Expression. 68 Prinsloo 2013 De Jure 178-205. 69 Albertyn and Davis 2010 SAJHR 188-216. 70 Section 7(1) of the Constitution. 71 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 72 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 73 SAQA 2000 http://www.saqa.org.za/docs/pol/2003/getc.pdf . 74 S v Makwanyane 1995 3 SA 391 (CC) para 262. 75 Holomssa v Argus Newspapers 1996 2 SA 588 (W) para 615. 76 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 77 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 78 Gordon 1984 J L & Educ 523-579. 79 Gordon 1984 J L & Educ 523-579. 80 Yudof When Government Speaks. 81 Mawdsley, Smit and Wolhuter 2013 De Jure 132-161. 82 Emerson System of Freedom of Expression. 83 Dugard Human Rights. 84 The International Covenant on Civil and Polttical Rights (1966). 85 Emerson System of Freedom of Expression. 86 S v Turrell 1973 1 SA 248 (CC) para 257. 87 Buckingham 1997 IJMCS 78. 88 Wielemans 1999 Themanummer Pedagogisch Tijdschrfft 369-373. 89 Andsager and Ross 1995 JMCE 54. 90 Roux Human Rights Literacy. 91 Becker, De Wet and Parker 2014 JSR. 92 Roux Human Rights Literacy; Becker, De Wet and Parker 2014 JSR. 93 Roux Human Rights Literacy. 94 Becker, De Wet and Van Vollenhoven "Human Rights Literacy" 35. 95 Roux Human Rights Literacy. 96 Roux Human Rights Literacy. 97 Roux Human Rights Literacy. 98 Roux Human Rights Literacy. 99 Roux Human Rights Literacy, Van Vollenhoven, Beckmann and Blignaut 2006 Journal of Education 119-140. 100 Roux Human Rights Literacy. 101 Roux Human Rights Literacy. 102 Van Vollenhoven Learners' Understanding of their Right. 103 Bronstein, Glaser and Werbeloff 2012 SAJHR 55-80.
Freedom of Expression
FREEDOM OF EXPRESSION
Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.
But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI — hardly ancient history — that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.
The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)
THE FIRST AMENDMENT IGNORED
Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution’s framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish “any false, scandalous and malicious writing” against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.
Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.
The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.
Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.
THE SUPREME COURT AND THE FIRST AMENDMENT
During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.”
From then on, the right to freedom of expression grew more secure — until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the “clear and present danger” test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.
Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.
WHAT DOES “PROTECTED SPEECH” INCLUDE?
First Amendment protection is not limited to “pure speech” — books, newspapers, leaflets, and rallies. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.
Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination — and that is unconstitutional.
When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.
FREE SPEECH FOR HATEMONGERS?
The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”
Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”
At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.
SPEECH & NATIONAL SECURITY
The Supreme Court has recognized the government’s interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of “national security” to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.
In 1971, the publication of the “Pentagon Papers” by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country’s involvement in Vietnam, was leaked to the press. When the Times ignored the government’s demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through “prior restraint,” block publication of any material unless it could prove that it would “surely” result in “direct, immediate, and irreparable” harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.
The public’s First Amendment “right to know” is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government’s claims of “national security” must always be closely scrutinized to make sure they are valid.
The Supreme Court has recognized several limited exceptions to First Amendment protection.
- In Chaplinsky v. New Hampshire (1942), the Court held that so-called “fighting words … which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected. This decision was based on the fact that fighting words are of “slight social value as a step to truth.”
- In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished — only if the offended official can prove the falsehoods were published with “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.” Other kinds of “libelous statements” are also punishable.
- Legally “obscene” material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce’s classic Ulysses to the photographs of Robert Mapplethorpe.
In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.
THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY
It’s the foundation of self-fulfillment. The right to express one’s thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself — and as such, deserves society’s greatest protection.
It’s vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one’s own conclusions against opposing views. Therefore, all points of view — even those that are “bad” or socially harmful — should be represented in society’s “marketplace of ideas.”
It’s necessary to our system of self-government and gives the American people a “checking function” against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.
THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION
The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual’s freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:
RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, “Speech Acts” and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, Anchor Press, 1995.
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Freedom of Speech and Expression Opinion Essay
It is indeed true that the freedom of individual expression largely emanates from the level of autonomy granted. When our individual autonomies are restricted, the freedom of expression is also affected. This implies that autonomy is the epitome of the freedom of expression in many ways.
Nonetheless, a certain level of restriction is usually applied by authorities in cases whereby the granted autonomy may lead to chaos or disruption of peace (de Zayas & Martín, 2012).
Some critics argue that individual autonomies may be restricted on the basis of persuasive speech. However, expressive statements that are too persuasive may not necessarily be stopped by the government except in extraordinary situations when such speeches are meant to cause fear. If negative consequences are brought about by a speech, then it is justifiable for the authorities to inject some restrictions (Kendrick, 2014).
Needless to say, offensive speech cannot be allowed by the government because it does not go hand in hand with the tenets of true autonomy. It can be proper for a speech to be permitted even if it is persuasive so long as it does not offend others. Perhaps, this is the point of diversion between autonomy and restriction of the freedom of expression.
There are myriads of laws that have been established with the aim of reviewing the impacts of freedom of speech. A speech might be considered to be offensive in various ways. In some cases, individuals are offended by the freedom of speech if they suspect that the impacts will be negative (Temperman, 2011). Owing to the persuasion principle, the freedom of speech cannot be easily suppressed.
It is also interesting to mention that a given piece of speech can be offensive without necessarily being persuasive. In other terms, a speech might be intrinsically offensive (McLaughlin, Uggen & Blackstone, 2012).
Self-fulfillment of every individual is the main factor that drives the freedom of speech and expression. The latter is also instrumental when seeking the autonomy of individuals. Freedom of opinion and expression is one of the crucial political freedoms and fundamental freedoms practiced globally (Claybourn, 2011). It goes hand in hand with freedom of information and specifically freedom of the press.
The latter refers to the freedom for a newspaper owner to say or be silent about what he sees fit in his journal. It is subject to response by the courts for libel or slander. Defamation and slander are the main reasons why restrictions on the notion of freedom of expression for any public speech exists (Temperman, 2011).
For some scholars like Kant, freedom of expression is necessary since it elevates the inner thoughts of an individual. Of course, the freedom to speak or write can be taken away by a higher power. We can say that this external power that robs men the freedom to communicate their mind publicly, also removes the freedom of thought.
The latter is a clear indication that the freedom of speech and expression have notable clash with the autonomy prescribed by individuals. One of the ways that can be used to bridge the gap or balance the conflict is the adoption of internationally recognized pieces of legislation that bind every nation (Temperman, 2011). For instance, the freedom of opinion should be presumed as a basic right to every individual.
The Human Rights declaration does not specify the particular conditions or restrictions on the freedom of expression. Nonetheless, a number of jurisdictions under the umbrella of the United Nations and countries bound by the declaration tend to restrict this freedom since it prohibits the language that agitate for racial, national or religious hatred (Temperman, 2011).
Freedom of expression is often the first freedom eliminated in totalitarian regimes. Since the late twentieth century, the emergence of various forms of mass communication such as the Internet alongside the inability of states to adapt to such technological developments have led to several challenges.
As a result, there has been growing need to control the freedom of expression and take it over completely as it is the case with a country like China (Temperman, 2011).
Freedom of expression is subject to limitations that are prescribed by law and are deemed necessary to respect the rights and reputation of others. This means that restrictions are often imposed on the freedom of expression whenever deemed necessary.
For security reasons (for example repression of incitement to commit crimes or offenses), restriction on the freedom of expression may be imposed and consequently affect the autonomy of individuals. Second, protection of the rights of individuals may take place when there are possibilities of repression of public insult and defamation, or the fight against racial discrimination and denial.
When individuals or institutions can intervene formally to limit expression outside the restricted case, we talk about censorship. Sex and violence are among the topics covered most often by censorship.
Several states also have laws against blasphemy, that are considered by several secular activists as an attack on the freedom of expression. Therefore, freedom of expression remains restricted in several jurisdictions (de Zayas & Martín, 2012).
Freedom of expression also encounters a severe limitation with respect to private life and hence the autonomy of an individual.
Freedom of expression is perhaps not the first or most fundamental freedom (freedom of movement is the first freedom or the freedom that determines priority and takes precedence over others). Freedom of expression has been dismissed by some political theorists as a Western perspective or philosophy (Temperman, 2011).
During the 1960s, the freedom of expression was sought by a significant number of pressure groups following attempts to recurrent pornographic or immoral literature materials that were censored. Today, there are myriads of legislations in place that address offensive terms that may be used against minority groups or religions.
Regularly, writers and publishers are concerned about the resurgence of censorship. The reason given in most cases is not pornography, but hate speech. In the United States, a new anti paparazzi came into effect in California since January 1, 2010. It has been claimed by the actress Jennifer Aniston and supported by several other celebrities.
Sexual harassment is obviously a criminal offense punishable by law. If committed by an employee; it is liable to disciplinary action that should be taken by the employer. In the context of labor relations, sexual harassment can take many forms: blackmail hiring or promotion, threats of retaliation if a victim refuses to give in to sexual advances, and so on (de Zayas & Martín, 2012).
The harasser can be the employer, a colleague of the victim, a recruiting firm or a customer of an organization. It is the responsibility of employers to take all necessary steps to prevent acts of sexual harassment, stop it and even inflict punishment to the offenders. Sexual harassment entails the act of imposing an indecent act of sexual behavior and tendencies on a person.
This may take place repeatedly and eventually culminate into impairing of a person’s dignity. Sexual harassment may also be executed verbally to the detriment of the victim’s personal values. An employee can be intimidated by all forms of sexual harassment and finally limit his or her autonomy. An individual may also be grossly humiliated in a situation that entails sexual harassment.
The scope of protection of victims and witnesses of sexual harassment in the context of the employment relationship is one of the pointers that can be put into consideration when exploring the issue of autonomy and the freedom of expression or speech. Although there are labor laws in place, it is the responsibility of employers to make sure that victims of sexual harassment are safeguarded.
What sanctions can be taken against the perpetrator of sexual harassment? In any case, individuals who have been sexually harassed at workplace may lack the autonomy to perform as per the expected standards since they fear losing their jobs (de Zayas & Martín, 2012).
Labor inspectors are in particular responsible for ensuring compliance with the provisions of the Labor Code and other legal requirements relating to employment (Claybourn, 2011). They are responsible, in conjunction with the officers and agents of the judicial police, to report violations stated in the labor laws provisions.
Acts of sexual harassment committed by an employee should be fully subjected to disciplinary sanction by the employer.
I believe that there is a difference in ideology between the perspectives exemplified in the above section. Therefore, the freedom of expression and autonomy of individuals should be exercised within the provisions of the law in order to bridge the gap or minimize the prevailing conflicts.
Claybourn, M. (2011). Relationships between moral disengagement, work characteristics and workplace harassment. Journal of Business Ethics, 100 (2), 283-301.
de Zayas, A., & Martín, Ã. R. (2012). Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment No. 34 of the UN Human Rights Committee. Netherlands International Law Review, 59 (3), 425-454.
Kendrick, L. (2014). Free Speech and Guilty Minds. Columbia Law Review, 114 , 1255- 1295.
McLaughlin, H., Uggen, C., & Blackstone, A. (2012). Sexual harassment, workplace authority, and the paradox of power. American Sociological Review, 77 (4), 625- 647.
Temperman, J. (2011). Freedom of expression and religious sensitivities in pluralist societies: Facing the challenge of extreme speech. Brigham Young University Law Review, 2011 (3), 729-757.
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What is freedom of expression?
Since 1987, ARTICLE 19 has worked for a world where all people, everywhere, can express themselves freely.
Freedom of expression is the freedom for us all to express ourselves. It is the right to speak, to be heard, and to participate in political, artistic, and social life. It also includes the ‘right to know’: the right to seek, receive, and share information through any media.
When you share your views or seek out information, online or off, you’re exercising your right to freedom of expression.
When you criticise your government for not living up to its promises, you’re exercising your right to freedom of expression.
When you question or debate religious, political, social, or cultural practices, you’re exercising your right to freedom of expression.
When you attend a peaceful protest, or organise one, you’re exercising your right to freedom of expression.
When you create a work of art, you’re exercising your right to freedom of expression.
When you comment on a news article – whether you’re supporting it or criticising it – you’re exercising your right to freedom of expression.
And when the journalist published that article, so was she.
Why is freedom of expression important?
Freedom of expression is fundamental to political dissent, diverse cultural expression, creativity, and innovation, as well as the development of one’s personality through self-expression.
Freedom of expression enables dialogue, builds understanding, and increases public knowledge. When we can freely exchange ideas and information, our knowledge improves, which benefits our communities and societies.
Freedom of expression also enables us to question our governments, which helps to keep them accountable. Questioning and debate are healthy – they lead to better policies and more stable societies.
‘”You can’t say that!” is all too often the response of those in power to having their power challenged. To accept that certain things cannot be said is to accept that certain forms of power cannot be challenged’
– Kenan Malik , writer, lecturer and broadcaster
The problems we all face are complex. If we cannot freely exchange ideas and information, then we are all deprived of the potential solutions.
A foundational right
Freedom of expression is a foundational right, meaning it is essential for the enjoyment and protection of all human rights.
With the right to freedom of expression, every person, every community, and every society can ask for the most fundamental things they need.
Like water, food, shelter, and clean air. Healthcare, education for our kids, decent work, and fair wages.
For the freedom to practise the faith of our choice or none, to love and marry whoever we want, and to stand in solidarity with those who suffer.
And for rich and poor to be treated equally before the law.
In other words, freedom of expression is the lifeblood of democracy .
“‘Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”
– Ben Okri, Nigerian poet and novelist
Does freedom of expression mean we can say whatever we like?
While the right to freedom of expression is fundamental , it is not absolute . This means it can be limited in exceptional circumstances.
It is vital that we distinguish between:
(a) speech that encourages violence and discrimination against people (e.g. intentional incitement to racial hatred), which should be prohibited; and
(b) speech that criticises or challenges ideas or the status quo (e.g. criticising a government, nation, or religious idea), which should be protected – even if it is offensive or unpopular – because it lets us learn about different ideas and challenge those in power.
‘What is freedom of expression? Without the freedom to offend, it ceases to exist.”
– Salman Rushdie , novelist and professor
Religions, governments, and flags cannot be harmed – only people can. That’s why human rights protects people – not ideas, states, or religions.
Likewise, any restrictions on free speech should only protect people from harm, not governments from criticism.
And it’s people with the least power who need the most protection.
‘Censorship is a political tool and its advocates may cite religious orthodoxy or any other dogmatic belief to claim the moral high ground and silence or even murder those they disagree with.’
– Jo Glanville , journalist
Who protects our right to freedom of expression?
Freedom of expression is protected under international law (Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights ).
This means that nearly every State in the world is obliged to protect the right to freedom of expression.
‘Politicians and public officials must create an enabling environment for freedom of expression, not diminish it’
– 2021 Joint Declaration of International Rapporteurs
But freedom of expression is so fundamental to each and every one of us – from civil society to journalists, educators, writers, artists, lawyers, and activists – that we all have an obligation to stand up for it.
Including you and I.
“There’s really no such thing as the ‘voiceless’. There are only the deliberately silenced, or the preferably unheard.”
– Arundhati Roy, author
Find out more about freedom of expression
Camden Principles on Freedom of Expression and Equality
Global Expression Report 2023 – a ranking of how free countries are
Our legal and policy work
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Freedom Of Expression Essay Examples
Type of paper: Essay
Topic: Law , Freedom , Supreme Court , Criminal Justice , Crime , Belief , Democracy , Religion
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Freedom of expression is perhaps the most fundamental and universally acknowledged freedoms in the world. Democracies are based on the idea of allowing anybody to freely express their views and such space maintains human dignity. The very first United Nations convention unanimously agreed adopt Article 19(2) of International Covenant on Civil and Political Rights (ICCPR) which guarantees as humans the right to freely express their opinion (Mendel, 2). The United States has enshrined the freedom of expression in the constitution. Americans value the fact that expressing themselves has been one of the cornerstones of the American society. However, in the recent past this right seems to have been overexploited. There are several reported cases where some persons have expressed their opinion in a derogatory manner leading to unexpected reaction from the insulted individuals. It began in Denmark where a cartoon was published in one of daily newspapers. The cartoon was offensive towards the Islamic religion. Was ensued was protests from the Muslim world towards the west. Further, such insulting expression has emerged in the recent past where a short film was posted online insulting the Islamic faith. The reactions from the Muslim community were as expected. Riots and burning of flags and effigies representing the United States were witnessed all over the world. Some analysts argue that the recent bombing of the United State consulate in Benghazi Libya was a result of the said film. Thus, while freedom of expression may be the cornerstone of a democracy, are there limits to it? To what extent does the law restrict freedom of expression? Is it okay to insult religious figures such as Mohamed of Islam or Jesus Christ of Christianity? What is the responsible thing expected of everyone if we are all expected to live in harmony and cohesion? This research paper seeks to explore the limits, both social and legal, that should be pegged on freedom of expression.
The right to expression has been protected by the First amendment of the United State constitution (Henry,1). Every court of law in the United States has the duty to uphold this right as one of the fundamental freedoms protected by law. According to such argument ridicule or insult directed at religious figures seem not to be limited. The right to denounce and argue against a religion is very much within legal purview and no one can be arrested for such actions. However, while the courts may find freedom of expression fundamental, several judicial precedence point to the fact there are limits when it comes to freedom of expression. One of the vital limits to freedom of expression is that such opinion should not direct at creating violence. In Chaplinsky vs New Hampshire (1942), the United States Supreme Court unanimously held that if any expression as used in plain language calls for a violent response on fellow men, such a expression will be deemed to have been illegal (Henry, 8). In many instances, several people have called upon others to wage war against fellow men. The US Supreme Court argued that words which can be classified as ‘fighting words’ go against the constitution and therefore cannot be accepted. In the same regard, if insults directed at religious figures call for violence, such expression is not protected by law. The Supreme Court has also restricted obscenity in expression. According to Miller v. California in 1973, the Supreme Court argued that expressions of obscenity do not enjoy the protection under the purview of freedom of expression (Henry, 2). Adler argues that much dispute may arise from defining the term obscenity. The supreme court, in expression its verdict, further sort to clarify the definition of the obscenity. In a three-part test now referred to as the Miller test, the Supreme Court argued that obscene is:
Any work of expression that, in community standard, appeals to prurient interest
Any expression that depicts sexual conduct in an offensive way and, The work, taken as whole, lacks any backing of art, literacy or scientific value. The Supreme Court directs that an act can be said to be obscene if all the three conditions as stated above are met. Therefore, if a ridicule or insult directed at a religious figure is found to be obscene, such expression is not protected by the law. Point in case is the Danish cartoon that caused much uproar around the world. The obscene depiction in the cartoon was quite insulting to the all communities without regard to religion.
The concept of religion is quite multifaceted and a matter that is central to most communities. Religion can be defined as a unified belief in some superior power beyond the ability and comprehension of ordinary men. Such belief in the unknown and unseen has defined several societies for ages. Wars and conflicts have been waged in the name religion the most common war being the campaign in the Middle Ages. European nations waged war against non-Christians claiming that they were infidels and should be eliminated. In similar recap, terrorism in the name of Jihad has emerged and is causing much concern. To this end, religion can be viewed as an emotive issue that needs to be respected. The United States constitution accords every citizen the right to any religion. The constitution allows all religions of all kinds and there are no restrictions towards practicing religion as long as it is within the law. Additionally, the constitution prohibits Congress from making legislation that could declare a religion the preferred religion for the country. In this regard, the concept of religions is acknowledged by the country and is given much respect. Thus what social responsibility lies with every individual with regard to freedom of speech and religion? According to the Human Rights Education Associates there lies an inherent responsibility to restrict speech that would evoke negative feelings with regard to religion. Unreasonable, angry and ill informed sentiments may stir negative and sectarian response. If insults are directed at different religious figures, it might result in exchanges likened to mud-slinging. In some instances, religions that may appear to be competition may end in violence and protracted sectarian wars. A good example of undesired outcome of religious insults and sectarian violence is in Nigeria. Northern Nigeria has experienced protracted sectarian violence between Muslims and Christians. The violence has killed several people with the government struggling to maintain order. It can therefore be argued that offensive speech directed at religious figures has far reaching implications. Decent could arise leading uncivilized societies defined by religion devoid other freedoms such democracy and peace . This inherent responsibility to respect other religion has been magnified by the spread of information technology. Nations and continents are now closer due to the internet. Information seems to disseminate across continents at very fast pace beyond the reach of governments. Adler argues that while the it might not be an issue to ridicule religious figures within the United States, such expressions reach other nations and may cause much uproar. This further deepens the negative perception that most ‘non-Christian’ nations already have towards the US.
The idea of free speech is one of the determinants of a progressive society. Democracies and the human fraternity value ideals that allow every individual to have the opportunity to express opinion. Constitutions and other legal documents have enshrined the freedom of speech or expression as one of the fundamental rights. A United Nations treaty considers freedom of expression to be vital. In all, the right to express opinion is a basic right that courts and law enforcing bodies assure citizens. When it comes to expressing insulting remarks towards religious figures, there are no legal instruments that may deter an individual as long as such expression is within the law. Either, the United State government does not limit the extent to which individual may express opinion with regard to religion. However, there is an inherent social responsibility towards respecting the religion of others. Insulting religious figures could as well be viewed ads insulting the faith and beliefs of an individual. For the sake of cohesion and good will among men it is inherent on everyone to let religion be. While it is okay to either criticize or reprimand other religion, expressing such opposition in a derogatory manner, is in my opinion, both repugnant and ill informed. What one considers sacred should be left as so.
Adler, Margot. Weighing the Limits of Freedom of Expression. 25 October 2006. 21 October 2012 . freedomforum.org. Limits of Freedom of Speech. 2010. 21 10 2012 . Henry, Cohenm. Freedom of Speech and Press: Exceptions to the First Amendment. http://www.fas.org/sgp/crs/misc/95-815.pdf. Washington DC: Congressional Research Service, 2009. Human Rights Education Associates. Freedom of Expression. 2012. 21 10 2012 . Mendel, Toby. "Restricting Freedom of Expression: Standards and Principles; Background Paper for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression." http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf. 2011.
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Video: The Kalven Report and Freedom of Expression
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Video is now available from our recent event The Kalven Report and Freedom of Expression . Speakers Cathy Cohen, Tom Ginsburg, and Christopher Wild discussed the Kalven Report, its aims, its limitations, and its implications here at the University of Chicago and beyond. This event was part of the new 3CT collaborative project The Corporate University .
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