What the fuck is freedom of speech, anyway?
What the fuck is freedom of speech, anyway?
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Thus, signatory nations have promised each other that they will not interfere at all, in any way, with the rights of anyone in their territory both to hold and express their own opinions, and to access and disseminate any information at all, however they may. This absolute freedom is able to be limited only for one of the four reasons listed, and then only by processes established by law, which are further limited by the requirement that they encroach no further upon the right than is absolutely necessary to fulfilling the legitimate purpose of the law.
This means that any laws that are established which have the result of limiting the ability of any person to say or see anything, any way they can, are illegitimate when not directed to one of those 4 purposes, or where there are less intrusive means available to achieve that limited purpose. A subsequent General Comment on the provision made clear that: “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself”.
So let’s look at the reasons for which governments are allowed to create laws which limit freedom of speech:
i. The rights or reputations of others
This basically encapsulates the understanding that rights conflict: ie, my right to privacy is impermissibly interfered with by you choosing to exercise your right to free speech by standing on my nature strip with a Marshall stack, a 6-pack and no intention of shutting the fuck up – I could invoke the law to have you removed, and I think most of us would agree that’s appropriate.
Under this head are also the more controversial laws protecting property rights in information which are argued to be rendered worthless through the free sharing of copyrighted material, particularly in digital form; an activity which would otherwise be clearly protected by the terms of Article 19.
ii. National security
Those of us poring through the State Department cables made public by Wikileaks will be familiar with the citation of reasons for classification such as 1.4(b). These refer to Executive Order 13526, which details US Government policy on limiting free speech in relation specifically to the purpose of protecting national security.
Other nations have other laws, though few as ostensibly committed to openness as the US, given the far longer protection of this right in that constitutional tradition. Indeed, this is one of the more expansive areas for oppressive abuse, particularly in light of the perceived threat from international terrorism which has been used to justify manifestly disproportional encroachments on this and various other fundamental rights by governments around the world.
iii. Public order
This provides the rationale to censor speech and material which is reasonably considered to pose a threat to social stability and group safety. It’s similar to the above, but on a more local scale, and while it does not require a dire threat to the life of the nation, it does require a clearly identifiable, serious and imminent harm which is highly likely to result from a failure to limit speech of a particular kind in particular circumstances.
It has been said of politicians that they are unique in being the only type of person who sincerely believes that the worst possible fate that could ever befall their electorate is for them to lose their job. It is clear, then, why this is a purpose of restriction even more liable to abuse by governments than the above, though again, to insist there could never be any lawful limitation on such grounds quickly becomes untenable.
iv. Public morality/health
This underpins censorship of material deemed to endanger the psychosocial fabric of society; largely material which is transgressive of taboos which differ from culture to culture. Laws passed for this reason are chiefly concerned with publication and take the form of standards for publishers and broadcasters.
Problems arise when the same standards are applied to the internet, which does not have the same public interest arguments for restriction, given that its model of distribution is not that of mass dissemination from a regulated monopoly: it relies on ‘pull’ rather than a ‘push’ transmission, meaning that one is not subject to unsolicited bombardment by material from the internet in the same way as one is by ambient radio, TV, billboards and so on.
In practice, this purpose is often invoked in tandem with public order to justify significantly broader restrictions than are necessary to protect against the limited, particularisable harms for which the limitations provide.
This is of course not intended to be a complete statement of all applicable laws, but an overview to the issue as seen through the lens of International Human Rights Law. It should be understood that while most nations are parties to the Covenant, its effects on domestic law are limited. Depending on the political system, some nations regard treaties as supreme law, with or without ratification by the legislature, while others regard them as instructive, but constitutionally impotent without implementing legislation to bring them within the domestic legal order.
Throughout are opportunities to stretch definitions, pervert purposes and produce systems with the veneer of legality, but which undermine and contradict the very principles upon which the legitimacy of public power in an age of popular sovereignty is said to depend.
The enforcement measures as established in the treaty itself depend upon treaty parties (ie nations) referring either themselves or other nations to the Human Rights Committee to be investigated, and some years later, politely chastised.
With the promises so clear, noble and necessary, and with unaccountable overreach so pervasive, many amongst us have heard the call to rise and contribute what we can to this fight. In that spirit, I hope that you feel better equipped to engage with the particular challenges to free speech as you encounter them, and be reassured, but also responsible, that your cause is just.
Fight on, Anon.
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