Introduction
The significance and the value of freedom of speech are guaranteed internationally by Articles eighteen and nineteen of the “United Nations’ Universal Declaration of Human Rights.” (Duquenoy, Jones & Bllundell 84).
Safeguarding of the privilege to liberty of speech is also assured in the legislation of individual nations. In the USA, as early as 1791, the liberty of speech is assured under the ‘First Amendment to the US constitution. Further, the liberty of speech falls as one of the fundamental rights or bill of rights under the US constitution.
The first amendment expresses that “Congress shall make no law —- abridging the freedom of speech, or the press. “
Freedom of speech is guaranteed by the First Amendment of the US constitution and the rights of the press as described below:
No law should be enacted by the Congress thereby respecting a religion or an establishment or limiting the free implementation thereof or taking back the liberty of speech, or of the journalists, or the privilege of people peacefully to gather and to make application to authorities for redressal of grudges.
In the UK, the Human Rights Act of 1988 guarantees freedom of speech vide its Article ten, that
“Freedom of expression is to be enjoyed by everyone. This liberty shall comprise privilege to have beliefs and to impart and receive ideas and info without intervention by governmental officials and despite borders or frontiers.” (Duquenoy, Jones & Bllundell 84).
Freedom of speech and press were not without any restrictions. An abuser can be punished for the misuse of such a right- a concept that emanated directly from state constitutions. The magnitude of abuse will be taken into consideration if it is associated with the label of a private individual and sometimes referred to as treason and only rarely to other subjects.
This research project intends to raise the question “Is proposing limits on freedom of speech and why limits should be placed?”. Relying solely on the background of the problem, I put forward about proposing limits on freedom of speech, primarily regarding hate speech and the goal is to persuade the audience why limits on free speech (primarily directed at hate speech) should be put in place. I foresee that my counter-arguments will primarily come from those wanting to protect our first amendment rights. Some may feel that if we allow limits to be imposed on freedom of speech what limits will be imposed on us next? Some may ask what constitutes hate speech and where will we draw the line? One may suggest that without unlimited rights to free speech, how could one debate the topics protected by hate speech laws?
This research essay analyses what is free speech, whether it can be enjoyed without any limits or if there is a limit, what are the nature of restrictions or limitations, how nations are being restricted to limit these rights in a detailed and an exhaustive manner
Analysis
In both UK and USA, there are some kinds of speech not safeguarded by free speech legislation. In the USA, the right to free expression or speech is not extended to obscene speech. Obscene laws in the US are composite and there have been many instances where the interpretation of the law has been examined with varied outcomes. The fundamental structure for deciding ‘obscene speech’ is offered by the milestone case of Miller v California. (1973). An obscene speech is one which:
- Exhibit excretory or sexual acts unambiguously restricted by state law
- Appeals to lubricious interests as demonstrated by sensible individuals employing community standards.
- Has no grave artistic, literary, political, social, or scientific value.
For instance, child pornography is illegal under US federal laws and the depiction of child pornography is an obvious illustration of obscene. The second rate of obscene speech, frequently named ‘indecent speech’ is that which is permissible for adults, but to which children under the seventeen ages should not be depicted. In other words, if it is harmful to minors, it is called ‘indecent speech.’ Thus, if anyone uses indecent speech either to or in front of a person who is less than seventeen years of age, such speech is considered to be illegal.
In the milestone case of “Ginsberg v New York”, harmful to minors’ was explained as below:
That quality of any representation or description, in whatever shape or form, of sexual conduct, nudity sadomasochistic abuse, or sexual excitement, when it:
- Preponderantly, appeals to the prurient, reprehensible, or melancholic interest of minors and
- Is seemingly offensive to existing norms in the adult community as a whole with what is appropriate for minors, and
- Is entire without redeeming social significance to minors.
Though local communities and state legislatures have enforced these standards of ‘indecency ‘ or ‘obscenity’ differently, these yardsticks have acted as a general interpretation to what speech should be ‘off-limits’ to anyone, and what should be ‘off-limits’ to children under seventeen years age. (Duquenoy, Jones & Bllundell 84).
The recent legislation enacted by the US Congress namely the “Children’s Internet Protection Act, 2000” spotlights the internet terminals in libraries and schools. Those libraries and schools that receive federal funds and programs shall be governed by this act. Under the above law, such schools should fit ‘software for filtering ‘on the entire of its internet terminals to bar access to those websites with obscene material, child pornography, and material ‘harmful to minors.’
In the USA, there is no specific legislation that specially forbids hate speech pointed towards the specific ethnic, racial and social group. However, these communities may use any provisions like conspiracy, slander, disturbing the peace, and incitement to riot among others to substantiate the abuse of free speech.
If an individual publicly shouts and says that ethnic group ‘Y’ is comprised of criminals and thieves and they may also be sentenced for particularly trying to stage a criminal activity and to rouse a group to commit an act of violence against members of an ethnic group. To put it differently, hateful things are allowed as long as there is no obvious effort to support expressions of that hate beyond speech and into specific action.
The privacy act in the USA can be classified into the following categories namely:
- Preserving the notion of privacy
- The 4th Amendment to the US constitution,1791
- The Human Rights Act,1998
- Safeguarding Individual Privacy
- The Data Protection Act,1998
- The Freedom of Information Act 2000
- Serving the Interests of the State
- The Regulation of Investigatory Powers Act,2000
- The USA Patriot Act,2001
Supporters of free speech argue that any restriction on free speech and the free exchange of ideas may even have some intellectual consequences. Open discussion and free speech always kindle thinking.
Hence, it can be argued that the outcome of traversing free speech is the suppression of intellectual activity. Thus, the speed of human development and progress can be curtailed if there is a denial of free expression.
The free speech right promotes and nurtures creative thinking and arouses intellectual activity. The U.S Supreme Court has viewed that the Internet merits the maximum free speech safeguards.
However, I disagree with this concept. Can child pornography, indecent speech, obscene speech, and hate speech be said that will kindle thinking and will augment the intellectual activity of society? Not at all.
The relationship between democracy and free speech is too complex. Though it is axiomatic that free speech is vital to democracy, the enlargement of free speech protection to political and commercial advertising, and campaign contributions and spending, has offered industry and wealthy lobbyists to distort the political process. Attempts to reform campaign finance have run smack into court rulings that limiting campaign expenditures is a refusal of free speech.
The US Supreme Court has held that it is an infringement to limit the amount one can spend on a campaign. Further, commercial advertising enjoyed protection for free speech in the 1970s as it was argued that ads offer the public information required to be informed, consumers. (Cohn, 25).
Although, the first amendment guarantees free speech, neither Congress nor the courts have observed these rights as absolutes. The issue has been how to define the limits of press and speech and to develop a reliable rationale for the elucidation of these limits.
The Supreme Court of USA has forwarded a wider interpretation to freedom of the press and corroborated its view in Masson v. New Yorker. The Court, however, is more eager to deter the government efforts to restrict speech. Thus, the Court has splintered treatment of speech in Gentile v. State Bar of Nevada and in Rust v. Sullivan which had put a cover of fog on free speech that can only be removed if the Court selects a more cohesive approach in the future. (Ottley and Katherine, 2).
In 1971, in the Pentagon Paper case, the Supreme Court reconfirmed the First Amendment’s restriction of government efforts to restrict or to place a prior restraint on the press even by the name of national security.
The Court viewed in New York Times v.Sullivan case that government authorities could reclaim damages for purportedly defamatory news articles about their official demeanor only if they can demonstrate ‘actual malice.’
For example, in Sweden, the” Freedom of the Press Act” bars the words of intimidation or disrespect against ethnic, cultural, or spiritual groups. (Axberger, n.d). The stipulation is seldom employed, but in 1991, an editor of the newspaper was pursued releasing a correspondence from a subscriber conveying racist beliefs. The argument by the editor was that such analysis should be permitted to be published so that they could be deliberated. The editor was acquitted by the jury. This demonstrates that the exemption under the freedom of speech is not available to a person if he encourages racism. Thus, this demonstrates that the judiciary would not tolerate if there is abuse of free speech. (Axberger, n.d).
In Gertz v. Robert Welch, Inc, the Court maintained this balance of the press while differentiating between public figures and private individuals, efforts to avoid the Court’s approach under the heading of deliberate infliction of emotional pain were collectively discarded in Hustler v. Falwell. (Ottley and Katherine, 2).
Though the Supreme Court has not offered the press the complete protection from suit that it has been often demanded, it has prolonged to enlarge the extent of the First Amendment and use of the actual malice test. In Masson, the Court held that a journalist’s purposeful modification of an individual’s words in a quote is not mechanically actual malice.
In Masson, the Court viewed that a journalist’s purposeful modification of a person’s words in a quotation is not automatically actual malice. However, the plaintiff must demonstrate that there was a substantial change in the implication conveyed to be the statement. In Rust, the Court admitted that free speech is not restricted on federally funded university campuses. The Court requires a consistent rationale for a restriction on free speech. In recent cases, its fractional approach offers only one guarantee of future decisions. (Ottley and Katherine, 2).
It is to be noted that in many nations, both satire and parody are protected speech. Any other significant messages will be construed as non-business communication like communication that has a political or ideological substance. For instance, a sign that advertises ‘Abortion is Evil ‘or Elect Obama as President ‘is a non-commercial sign. Diverse levels of legal safeguards are enjoyed by both business and non-business messages. The courts will apply fewer magnitude tests to laws that apply to conditions that influence non-commercial speech. The milestone Supreme Court case on laws restricting “speech of commercial nature “is
“Central Hudson Gas & Electric Co v Public Service Commission and in this case, the Court held that a directive of speech of commercial nature must satisfy a three-part test. If the language is about a constitutional activity and is not deceptive or bogus, then it must resemble the major legislative interest and be no broader than essential to cater for that interest.
In, Metromedia, Inc v City of San Diego One case, the Supreme Court held that extended free speech principles to sign ordinances as the “tower of Babel “case. (Salkin, 68). In this case, a divided court banned the billboard that consisted of the city’s wide-ranging sign ordinance but held it illegal since it also included provisions that seemed to infringe the Freedom of Speech. (Salkin, 68).
The Supreme Court held In ‘City of Ladue v Gilleo’, that a sign ordinance contravened free speech without depending on the content neutrality rule, though it obviously could have applied it. (Salkin 72). The Supreme Court held that to make an ordinance invalid that barred homeowner signs in the residential provinces with only a few immunities like the safety hazard sign. (Salkin 72). A war objection sign was posted by the defendant Gilleo in her window and the city administration demanded its removal. The municipalities according to the Court though have a compelling interest in minimizing visual clutter, but they cannot do so by excluding a significant and distinct medium of expression for religious, political, or personal messages. (Salkin 72).
Freedom of speech and press were not without any restrictions. An abuser can be punished for the misuse of such a right- a concept that emanated directly from state constitutions. The magnitude of abuse will be taken into consideration if it is associated with the label of a private individual and sometimes referred to as treason and only rarely to other subjects.
Some examples of limits on free speech
- When extremist Dutch Parliamentarian Geert Wilders was charged for infringing Holland’s hate speech law and even barred from entering Britain, this is evidence that free speech is lost.
- Finland, Sweden, Iceland, Britain, and Norway all restrict hate speech as differentiated from other nations, which restricts incitement of violence or other imminent lawless conduct. (Sanchez, n.d). Supporters of free speech argue that government should punish acts of hate and thoughts. They claim that banning or restricting racist speech may not put a full stop to racist thought but rather adds to its allure. (Sanchez, n.d). However, I disagree with this view. For instance, Fred Phelps and the Westboro Baptist Church engaged in the picketing at the funeral of Matthew Shepard, holding billboards with the words “AIDS cures faggots” and “Matthew burns in hell” can be regarded as an expression of free speech. To me, they are abusing, and they have to be punished. There appeared an article in the Kansas City Star, which discussed how one father is trying to sue Fred Phelps for the pain he suffered when Phelps ruined the last memories of his son Marine Lance Cpl. Matthew Snyder, who died while serving his country. In the article, it was expressed that, “The First Amendment can be a powerful shield at times. Within certain bounds and no doubt, Phelps’ right to protest supersedes this father’s right to bury his son away from such hate.” (Sanchez, n.d).
Phelp’s right should not disturb the right of a father who wishes to carry out his son’s last rites. This does not seem to be constitutional in itself but repeated attempts were made to put limits on the activities of the Westboro Baptists Church by saying that their rights are safeguarded under the first amendment. I strongly feel that something should be done to protect the people from unwillingly being subjected to such as hate speech.
I do not think these limits should impede the media and debate, but the rather public demonstration of such hate. For instance, if the Westboro church could continue spewing their hatred within the church but could not make public demonstrations without penalty any longer. In the church, you have a choice on whether or not you want to be there, whereas you should not have to choose whether or not to bury your loved one because the funeral is being picketed. If you want to blog about how much you hate soldiers, gays, others of the opposite race, sex, or religion feel free because if I do not agree I just do not visit your site, but do not stand out in the street preaching to me how you hate me because I am a woman.
- Any person who denies the Holocaust or communist genocide is given between 6 months to 3 -years imprisonment by the Czech Penal Code. Any speech adoring Nazism and or denying the Holocaust is punishable by the criminal laws of Austria and Germany. It is to be noted that holocaust denial negates one to know the historical evidence and these laws make open discussion impossible thereby refusing the chance to expose such beliefs as twisted, uninformed, and irresponsible. (Cohn, 27).
- As of date, about twelve European countries have antiqued statue that bars insulting the state emblems, monarchs, state, and institutions as applicable. An Australian journalist was called “an idiot” by a neo-Nazi sympathizer he was held for infringing Article 115 of Austria’s criminal code. (Cohn, 28). However, the European Court of Human Rights later overturned his conviction and also made identical judgments to free two journalists who were convicted under the specific French law. (Cohn, 28).
- Muzzle law enacted by Czech infringes the public privilege to information on public affairs. It threatens the journalist who has reported on police matters employing data obtained through wiretaps to 5 years in prison and 5 million in CZK fine. (Cohn, 27). This law is now being challenged n the Czech constitutional court, which infringes the public privilege to comprehend by enforcing overbroad restrictions on reporting, transferring culpability from leakers to journalists, and holding out an unduly harsh punishment. (Cohn, 27).
- The Czech Republic is having defamation law, which chills free speech. Czech defamation law does not only have civil liability but also imposes criminal prosecution up to a year in prison. It is alleged that Czech law serves only the interest of the powerful. (Fisher, 5).
- Citrus college in California was ordered to pay $24,500 to a student who sued the college in federal court for limiting the protest activities to three “free-speech zones” on a college campus, which has restricted his First Amendment rights. By creating such free speech zones, the college restricted the zone in which the students have to operate, to get prior permission, and to submit the copy of the printed materials to be supplied in their protest which the student alleged restricts the rights granted under First Amendment. Earlier in 1999, a federal judge struck down a portion of a speech policy of a college that ordered that students should be allowed to have their demonstration in front of a place other than a free speech zone. The judge also ordered that microphones can be used to address large gatherings. (Fisher, 5).
- McCain – Feingold campaign finance laws have been criticized that restrict the freedom of free speech and also puts a limit on election spending by corporations, else their corporations ’ massive wealth may distort and corrupt the entire political system of the USA. In the case of screening of TV documentary namely ‘Hillary’, the provisions of the 2002 McCain –Feingold campaign finance law that restricts corporate-financed ‘electioneering ‘in TV and radio. Finally, the court held on doing away with limits. The court’s ruling is influenced by the changing technology, the increasing part of the internet, the mixture of visual media and print that appears to be destined to make McCain –Feingold an obsolete law.
- Australia and Germany might have justified the laws on Holocaust –denial as they assisted to cease something even worse, a revival of Nazism. Further, the attempts by France and Belgium to legislate Holocaust –laws where there is no real threat of Nazism. Restriction on free speech is strongly condemned almost in all nations when they intend to suppress ethnic, racial, and religious hatred. (Economist, 2006).
Conclusion
Censorship and freedom of speech are each sides of a coin, and it has been a contentious issue for a long time. In many societies, the right to speech is a precious entitlement. The suppression of free speech has historically limited the speed of human advancement in the arts and science. Free speech is necessary to the world of ideas, which is required for efficient self-governance and societal development.
Regulations against religious and racial abhorrence are always supported on the basis that they are intended at xenophobes and racists. For instance, Belgium’s Supreme Court ordered the “Flemish far-right party “to disband on the culpability of racism. Such laws suits though indirectly discourage free speech, but it is an effort to arrest the spread of racism.
Freedom of speech and press were not without any restrictions. An abuser can be punished for the misuse of such a right- a concept that emanated directly from state constitutions. The magnitude of abuse will be taken into consideration if it is associated with the label of a private individual and sometimes referred to as treason and only rarely to other subjects.
Hence, I conclude that relying solely on the background of the problem, I put forward about proposing limits on freedom of speech, primarily regarding hate speech if it infringes others’ feelings.
Works Cited
Asperger H-G, “Freedom of the Press in Sweden”, in ARTICLE 19, Press Law and Practice, 1993.
Cohn, William A. “How Free is Free Speech?” New Presence: The Prague Journal of Central European Affairs 12.3 (2009): 23-27. Academic Search Premier. EBSCO. Web.
Duquenoy Penny, Jones Simon, and Blundell, Barry G. Ethical, Legal and Professional Issues in Computing. New York: Cengage Learning, 2007.
Fisher, Marie Jo “Calif. Student’s Suit Shakes Up Free-speech Restrictions.” Community College Week 16.2 (2003): 2-5. Academic Search Premier. EBSCO. Web.
Ottley, Bruce, and Katherine Schweit “Free speech: The need for a consistent standard.” Human Rights: Journal of the Section of Individual Rights & Responsibilities 18.3 (1991): 2. Academic Search Premier. EBSCO. Web.
“Protect free speech without gutting campaign limits.” USA Today n.d.: Academic Search Premier. EBSCO. Web.
Salkin marketplace, Patricia E. Trends in Land Use from A to Z. New York: American Bar Association, 2001.
Sanchez Maria, “Fighting Fred Phelps may be too costly”, Kansas City Star, 2009.
Annotated Bibliography
Cohn, William A. “How Free is Free Speech?” New Presence: The Prague Journal of Central European Affairs 12.3 (2009): 23-27. Academic Search Premier. EBSCO. Web.
This journal article is written by Cohn, William A in The Prague Journal of Central European Affairs. This article analyses deeply free speech, which seems to be a unifying principle, but often the devil is in the details with the actual cases and controversies which confront us. This article throws light on how free speech is advocated throughout the globe and also throws some light on limits imposed by certain nations, and they have challenged in the court.
Duquenoy Penny, Jones Simon, and Blundell, Barry G. Ethical, Legal and Professional Issues in Computing. New York: Cengage Learning, 2007.
This book has been written by Duquenoy et al and highlights the significance of free speech in the creation of new ideas and new inventions. The books also help the reader to realize the rationale for free speech, to comprehend the principles of freedom of expression drafted both in national and international law. It also appreciates the balance between censorship and free speech and also highlights the effect of computer technology on free speech.
Fisher, Marie Jo “Calif. Student’s Suit Shakes Up Free-speech Restrictions.” Community College Week 16.2 (2003): 2-5. Academic Search Premier. EBSCO. Web.
This is a useful newspaper article that throws light on how students are struggling to break the barrier imposed by their colleges for the removal of free speech zones, which restricted their free speech rights granted under the first amendment to the American Constitution.
Ottley, Bruce, and Katherine Schweit “Free speech: The need for a consistent standard.” Human Rights: Journal of the Section of Individual Rights & Responsibilities 18.3 (1991): 2. Academic Search Premier. EBSCO. Web.
This is a useful article written by Ottley et al in the journal of Human Rights. This article stresses the significance of free speech and the need for a consistent standard. It discusses the various case laws of the Supreme Court and attempts to highlight how the First Amendment safeguards the free speech rights of journalists in the USA.
“Protect free speech without gutting campaign limits.” USA Today n.d.: Academic Search Premier. EBSCO. Web.
This is an interesting newspaper article that elaborately discusses the provisions of McCain –Feingold campaign finance law. The court observation that limits set by the McCain law is not valid is laudable as it encouraged to discourage any attempt to restrict the freedom of speech in any form. However, critics have argued that would do an abundance of injury as money already purchases too many votes in Congress. Thus, putting a full stop to corporate limits would encourage corporates to buy more, which is reasoned to blithely wipe away the carefully written McCain-Feingold campaign finance law.
Salkin marketplace, Patricia E. Trends in Land Use from A to Z. New York: American Bar Association, 2001.
This book detail an article written by Sign Regulations and Free Speech: Spooking the Doppelganger written by Daniel R. Mandelker. This is a useful article as it spotlights various case laws that fortified the right to free speech in America.