Freedom of Speech Analysis

Freedom of speech For the freedom of speech in specific jurisdictions, see Freedom of speech by country. "Freedom of expression" redirects here. For other uses, see Freedom of expression (disambiguation). For other uses, see Freedom of speech (disambiguation). Freedom of speech is the political right to communicate one's opinions and ideas. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, as with libel, slander, obscenity, sedition (including, for example inciting ethnic hatred), copyright violation, revelation of information that is classified or otherwise. The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR).

Article 19 of the ICCPR states that "[e]veryone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".

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Article 19 goes on to say that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the protection of national security or of public order (order public), or of public health or morals". Freedom of speech may be legally curtailed in some religious legal systems and in secular jurisdictions where it is found to cause religious offense, such as the British Racial and Religious Hatred Act 2006.

The right to freedom of speech and expression Concepts of freedom of speech can be found in early human rights documents. [3] England’s Bill of Rights 1689 granted 'freedom of speech in Parliament' and the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. [4] The Declaration provides for freedom of expression in Article 11, which states that: "The free communication of ideas and opinions is one of the most precious of the rights of man.

Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. "[5] Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. "[6] Today freedom of speech, or the freedom of expression, is recognized in international and regional human rights law.

The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. [7] Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects: * the right to seek information and ideas; the right to receive information and ideas; * the right to impart information and ideas International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression. [7] Relationship to other rights

The right to freedom of speech and expression is closely related to other rights, and may be limited when conflicting with other rights (see Limitations on freedom of speech). [7] The right to freedom of expression is also related to the right to a fair trial and court proceeding which may limit access to the search for information or determine the opportunity and means in which freedom of expression is manifested within court proceedings. [8] As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others.

However greater latitude is given when criticism of public figures is involved. [8] The right to freedom of expression is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all. [7] However, freedom of the press is not necessarily enabling freedom of speech. Judith Lichtenberg has outlined conditions in which freedom of the press may constrain freedom of speech, for example where the media suppresses information or stifles the diversity of voices inherent in freedom of speech.

Lichtenberg argues that freedom of the press is simply a form of property right summed up by the principle "no money, no voice". [9] Origins Freedom of speech and expression has a long history that predates modern international human rights instruments. [10] It is thought that ancient Athens’ democratic ideology of free speech may have emerged in the late 6th or early 5th century BC. [11] Two of the most cherished values of the Roman Republic were freedom of religion and freedom of speech. 12] Freedom of speech, dissent and truth Before the invention of the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. No elaborate system of censorship and control over scribes existed, who until the 14th century were restricted to religious institutions, and their works rarely caused wider controversy. In response to the printing press, and the heresies it allowed to spread, the Roman Catholic Church moved to impose censorship. 14] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture). [15] The origins of copyright law in most European countries lie in efforts by the Roman Catholic Church and governments to regulate and control the output of printers. [15] In 1501 Pope Alexander VI issued a Bill against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time. [14] The Index Expurgatorius is the ost famous and long lasting example of "bad books" catalogues issued by the Roman Catholic Church, which assumed responsibility to control thoughts and opinions, and suppressed views that went against its doctrines. The Index Expurgatorius was administered by the Roman Inquisition, but enforced by local government authorities, and went through 300 editions. Amongst others it banned or censored books written by Rene Descartes, Giordano Bruno, Galileo Galilei, David Hume, John Locke, Daniel Defoe, Jean-Jacques Rousseau and Voltaire. 16] While governments and church encouraged printing in many ways because it allowed for the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books. [15] The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press.

Areopagitica, published in 1644, was John Milton's response to the Parliament of England's re-introduction of government licensing of printers, hence publishers. [19] Church authorities had previously ensured that Milton's essay on the right to divorce was refused a license for publication. In Areopagitica, published without a license,[20] Milton made an impassioned plea for freedom of expression and toleration of falsehood,[19] stating: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. [19] Milton's defense of freedom of expression was grounded in a Protestant worldview and he thought that the English people had the mission to work out the truth of the Reformation, which would lead to the enlightenment of all people. But Milton also articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favor of tolerance for a wide range of views. [19] As the "menace" of printing spread, governments established centralized control mechanism. 21] The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546. In 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books. " The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses.

As the British crown took control of type founding in 1637 printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, with 800 authors, printers and book dealers being incarcerated in the Bastille in Paris before it was stormed in 1789. [21] A succession of English thinkers was at the forefront of early discussion on a right to freedom of expression, among them John Milton (1608–74) and John Locke (1632–1704). Locke established the individual as the unit of value and the bearer of rights to life, liberty, property and the pursuit of happiness.

However Lockes ideas evolved primarily around the concept of the right to seek salvation for one's soul, and was thus primarily concerned with theological matters. Locke did not support a universal toleration and freedom of speech, some groups, like atheists, should not be allowed according to his ideas. [22] By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers. 23] By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophes like Denis Diderot, Baron d'Holbach and Claude Adrien Helvetius[24] The idea began to be incorporated in political theory both in theory as well as practice; the first state edict in history proclaiming complete freedom of speech was the one issued December 4, 1770 in Denmark-Norway during the regency of Johann Friedrich Struensee. 25] However Struensee himself imposed some minor limitations to this edict in October 7, 1771, and it was even further limited after the fall of Struensee with legislation introduced in 1773, although censorship was not reintroduced. [26] John Stuart Mill (1806–1873) argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression. 19] Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed. 27] Furthermore, Mill argued that an opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech. 28] In Evelyn Beatrice Hall's biography of Voltaire, she coined the following phrase to illustrate Voltaire's beliefs: "I disapprove of what you say, but I will defend to the death your right to say it. "[29] Hall's quote is frequently cited to describe the principle of freedom of speech. [30] In the 20th Century Noam Chomsky states that: "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Stalin and Hitler, for example, were dictators in favor of freedom of speech for views they liked only.

If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise. "[31] Professor Lee Bollinger argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters. " Bollinger argues that tolerance is a desirable value, if not essential.

However, critics argue that society should be concerned by those who directly deny or advocate, for example, genocide (see Limitations, below). [32] Democracy The free speech zone at the 2004 Democratic National Convention The notion of freedom of expression is intimately linked to political debate and the concept of democracy. The norms on limiting freedom of expression mean that public debate may not be completely suppressed even in times of emergency. [8] One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn.

He argues that the concept of democracy is that of self-government by the people. For such a system to work an informed electorate is necessary. In order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meiklejohn, democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from the motive of seeking to benefit society.

However, he argues, choosing manipulation negates, in its means, the democratic ideal. [33] Eric Barendt has called this defence of free speech on the grounds of democracy "probably the most attractive and certainly the most fashionable free speech theory in modern Western democracies". [34] Thomas I. Emerson expanded on this defence when he argued that freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as a "safety valve" to let off steam when people might otherwise be bent on revolution.

He argues that "The principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus. " Emerson furthermore maintains that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay. "[35] Research undertaken by the Worldwide Governance Indicators project at the World Bank, indicates that freedom of speech, and the process of accountability that follows it, have a significant impact in the quality of governance of a country. Voice and Accountability" within a country, defined as "the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and free media" is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries. [36] Social interaction and community Permanent Free Speech Wall in Charlottesville, VA Richard Moon has developed the argument that the value of freedom of speech and freedom of expression lies with social interactions. Moon writes that by communicating an individual forms relationships and associations with others – family, friends, co-workers, church congregation, and countrymen. By entering into discussion with others an individual participates in the development of knowledge and in the direction of the community. "[37] Limitations For specific country examples see Freedom of speech by country, and Criminal speech. According to the Freedom Forum Organization, legal systems, and society at large, recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights. 38] Limitations to freedom of speech may follow the "harm principle" or the "offense principle", for example in the case of pornography, or hate speech. Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both. [39] Members of Westboro Baptist Church have been specifically banned from entering Canada for hate speech. [40] In "On Liberty" (1859) John Stuart Mill argued that "... there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. [39] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. "[39] In 1985 Joel Feinberg introduced what is known as the "offence principle", arguing that Mill's harm principle does not provide sufficient protection against the wrongful behaviours of others.

Feinberg wrote "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end. "[41] Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm. 41] In contrast Mill does not support legal penalties unless they are based on the harm principle. [39] Because the degree to which people may take offense varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of factors need to be taken into account when applying the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large. 39] The Internet and Information Society Free Speech flag, from the HD DVD AACS case Jo Glanville, editor of the Index on Censorship, states that "the Internet has been a revolution for censorship as much as for free speech". [42] International, national and regional standards recognise that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet. [7] The Communications Decency Act (CDA) of 1996 was the first major attempt by the United States Congress to regulate pornographic material on the Internet.

In 1997, in the landmark cyberlaw case of Reno v. ACLU, the U. S. Supreme Court partially overturned the law. [43] Judge Stewart R. Dalzell, one of the three federal judges who in June 1996 declared parts of the CDA unconstitutional, in his opinion stated the following:[44] "The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.

Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates. [... ] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication.

The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. [... ] As we learned at the hearing, there is also a compelling need for public educations about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that Government’s permissible supervision of Internet contents stops at the traditional line of unprotected speech. ... ] The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff’s experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos. " Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. [44] The World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003 makes specific reference to the importance of the right to freedom of expression for the "Information Society" in stating: "We reaffirm, as an essential foundation of the Information society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers. "[45] According to Bernt Hugenholtz and Lucie Guibault the public domain is under pressure from the "commodification of information" as item of information that previously had little or no economic value, have acquired independent economic value in the information age, such as factual data, personal data, genetic information and pure ideas.

The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. [46] Freedom of information Main article: Freedom of information Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognised human right and freedom of information acts as an extension to this right. 47] Freedom of information may also concern censorship in an information technology context, i. e. the ability to access Web content, without censorship or restrictions. [48] Freedom of information is also explicitly protected by acts such as the Freedom of Information and Protection of Privacy Act of Ontario, in Canada. [49] Internet censorship Main articles: Internet censorship and Internet censorship by country The concept of freedom of information has emerged in response to state sponsored censorship, monitoring and surveillance of the internet.

Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet. [50] The Global Internet Freedom Consortium claims to remove blocks to the "free flow of information" for what they term "closed societies". [51] According to the Reporters without Borders (RWB) "internet enemy list" the following states engage in pervasive internet censorship: China, Cuba, Iran, Myanmar/Burma, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan, and Vietnam. 52] A widely publicized example of internet censorship is the "Great Firewall of China" (in reference both to its role as a network firewall and to the ancient Great Wall of China). The system blocks content by preventing IP addresses from being routed through and consists of standard firewall and proxy servers at the Internet gateways. The system also selectively engages in DNS poisoning when particular sites are requested.

The government does not appear to be systematically examining Internet content, as this appears to be technically impractical. [53] Internet censorship in the People's Republic of China is conducted under a wide variety of laws and administrative regulations. In accordance with these laws, more than sixty Internet regulations have been made by the People's Republic of China (PRC) government, and censorship systems are vigorously implemented by provincial branches of state-owned ISPs, business companies, and organizations. 54][55] Najat Vallaud-Belkacem a French Socialist Minister of Women's Rights proposed that the French government force Twitter to filter out hate speech that is illegal under French law, such as speech that is homophobic. Jason Farago, writing in the The Guardian praised the efforts to "restrict bigotry's free expression. " Freedom of speech in the United States From Wikipedia, the free encyclopedia Jump to: navigation, search The Newseum's five freedoms guaranteed by the First Amendment to the U. S. Constitution.

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. The freedom is not absolute; the Supreme Court of the United States has recognized several categories of speech that are excluded from the freedom of speech, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech. Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted.

There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander).

Distinctions are often made between speech and other acts which may have symbolic significance. Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence. * | First Amendment The First Amendment to the United States Constitution codifies the freedom of speech as a constitutional right. The Amendment was adopted on December 15, 1791.

The Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws. Early history England

During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Chief Justink Hut, writing in 1704-1705, explained the apparent need for the prohibition or no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it. The objective truth of a statement in violation of the libel law was not a defense. Until 1694 England had an elaborate system of licensing; no publication was allowed without the accompaniment of the government-granted license.

Colonies The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed. The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul.

In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words". [1] More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation. 2] The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York, William Cosby. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

First Amendment ratification In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government. During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government.

The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government. Alien and Sedition Acts Main article: Alien and Sedition Acts See also: Espionage Act of 1917 and Sedition Act of 1918 In 1798, Congress, which contained several of the ratifiers of the First Amendment at the time, adopted the Alien and Sedition Acts.

The laws prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame... or to bring them... into contempt or disrepute; or to excite against them... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States".

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act, however, made ascertainment of the intent of the framers regarding the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Acts were a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act.

The Act expired and the Supreme Court never ruled on its constitutionality. In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. " 376 U. S. 254, 276 (1964). Modern view As a result of the jurisprudence of the Warren Court in the mid-to-late 20th century, the Court has moved towards a baseline default rule under which freedom of speech is generally presumed to be protected, unless a specific exception applies.

Therefore, apart from certain narrow exceptions, the government normally cannot regulate the content of speech. Associate Justice Thurgood Marshall cogently explained this in 1972: [A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [Citations. ] To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.

The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. ' [Citation. ][3] Types of speech Core political speech This is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.

The primary exception to this rule would be within the context of the electoral process, whereby the Supreme Court has ruled that suffrage or standing for political office as a candidate are not political speech and thus can be subjected to significant regulations; such restrictions have been upheld in Buckley v. Valeo. Commercial speech Main article: Commercial speech Not wholly outside the protection of the First Amendment is speech motivated by profit. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state.

Restrictions of commercial speech are subject to a four-element intermediate scrutiny. (Central Hudson Gas ; Electric Corp. v. Public Service Commission) A June 2011 case casts doubt upon whether this category exists any more, or if it has been folded into the main category of speech. (Sorrell v. IMS Health)[4] Expressive conduct While freedom of expression by non-speech means is commonly thought to be protected under the First Amendment, the Supreme Court has only recently taken this view. As late as 1968 (United States v.

O'Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s (Clark v. C. C. N. V. , 1984). It was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech. Types of speech restrictions The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions Restrictions that require examining the content of speech to be applied must pass strict scrutiny. [citation needed] Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court's special exceptions. An example of this is found in the United States Supreme Court's decision in Legal Services Corp. v. Velazquez in 2001. In this case, the Court held that government subsidies cannot be used to discriminate against specific instance of viewpoint advocacy. The Court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You,' would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. Time, place, or manner restrictions The free speech zone at the 2004 Democratic National Convention Freedom of speech is also sometimes limited to free speech zones, which can take the form of a wire fence enclosure, barricades, or an alternative venue designed to segregate speakers according to the content of their message. There is much controversy surrounding the creation of these areas – the mere existence of such zones is offensive to some people, who maintain that the First Amendment makes the entire country an unrestricted free speech zone. 5] Civil libertarians claim that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials. [5] The Department of Homeland Security under the Bush Administration "ha[d] even gone so far as to tell local police departments to regard critics of the War on Terrorism as potential terrorists themselves. "[6][7] Time, place, or manner restrictions must withstand intermediate scrutiny.

Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). According to Ward v. Rock Against Racism, 491 U. S. 781 (1989), time, place, or manner restrictions must satisfy the following: 1. Be content neutral 2. Be narrowly tailored 3. Serve a significant governmental interest 4. Leave open ample alternative channels for communication Incidental burdens on speech See United States v. O'Brien. Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what's illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would "surely result in direct, immediate, and irreparable damage to our Nation and its people" (New York Times Co. v. United States). U. S. courts have not permitted most prior restraints since the case of Near v. Minnesota in 1931. Exclusions

Main article: United States free speech exceptions Incitement to crime Speech that presents imminent lawless action was originally banned under the clear and present danger test established by Schenck v. United States, but this test has since been replaced by the imminent lawless action test established in Brandenburg v. Ohio. The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire! " in a crowded movie theater (This example was authored in Schenck v. United States, but still passes the "imminent lawless action" test).

The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content. Fighting words Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment. If the hearer is prosecuted for assault, claiming fighting words may establish mitigating circumstances. [8] True threats See Watts v. United States, Virginia v. Black. Obscenity

Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography. ) Child pornography See New York v. Ferber. Torts Defamation Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v.

Falwell made famous in the movie The People vs. Larry Flynt. Making false statements in "matters within the jurisdiction" of the federal government is also a crime. Invasion of privacy See Time, Inc. v. Hill. Intentional infliction of emotional distress See Hustler Magazine v. Falwell, Texas v. Johnson. Commercial speech Restrictions on commercial speech, defined as speech mainly in furtherance of selling a product, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech.

This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company). Political spending Campaign contributions See Buckley v. Valeo. Independent political expenditures See Citizens United v. Federal Election Commission Government speech The government speech doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth. Public employee speech

Statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline as per the case of Garcetti v. Ceballos. This applies also to private contractors that have the government as a client. The First Amendment only protects employees from government employers albeit only when speaking publicly outside their official duties in the public interest Pickering v. Board of Ed. of Township High School Dist. Speech is not protected from private sector disciplinary action. 9] Student speech Main article: School speech (First Amendment) Original "BONG HITS FOR JESUS" banner now hanging in the Newseum in Washington, D. C. In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is "substantial interference with school discipline or the rights of others". Several subsequent rulings have affirmed or narrowed this protection. Bethel School District v.

Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be "indecent" but not "obscene". Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading "BONG HiTS 4 JESUS" at a school-supervised event which was not on school grounds.

In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and unnecessarily prohibitive of criticism against the school district. [10] Such protections also apply to public colleges and universities; for example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts. [11][12] In Lamb's Chapel v. Center Moriches Union Free School District, 508 U. S. 84 (1993), the Supreme Court held (in a unanimous decision) that the Free Speech Clause of the First Amendment was offended by a school district that refused to allow a church access to school premises to show films dealing with family and child-rearing issues faced by parents. National security Military secrets Publishing, gathering, or collecting national security information is not protected speech in the United States. [13] Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. 14] Non-military information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm. [14] The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited. [15] The knowing and willful disclosure of certain classified information is prohibited. [16] The unauthorized communication by anyone of "Restricted Data", or an attempt or conspiracy to communicate such data, is prohibited. 17] It is prohibited for a person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose covert agents" to disclose the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U. S. foreign intelligence efforts. [18] In addition to the criminal penalties, the use of employment contracts, loss of government employment, monetary penalties, non-disclosure agreements, forfeiture of property, injunctions, revocation of passports, and prior restraint are used to deter such speech. 19] Inventions The Voluntary Tender Act of 1917 gave the Commissioner of Patents the authority to withhold certification from inventions that might harm U. S. national security, and to turn the invention over to the United States government for its own use. [20][21] It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information. [22] Both attached criminal penalties to subjected inventors. [23] The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available. 24][25][26] The government issued between approximately 4,100 to 5,000 orders per year from 1959 to 1974, a peak of 6,193 orders in 1991, and approximately 5,200 per year between from 1991 to 2003. [26] Certain areas of research such as atomic energy and cryptography consistently fall within their gamut. [27] The government has placed secrecy orders on cold fusion, space technology, radar missile systems, and Citizens Band radio voice scramblers, and attempts have been made to extend them to optical-engineering research and vacuum technology. [27] Nuclear information

The Atomic Energy Act of 1954 automatically classifies "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy". [28] The government has attempted to censor publications regarding nuclear information in the Scientific American in 1950 and The Progressive in 1979. [29][28] Weapons Pub. L. 106–54 of 1999, a bill focused on phosphate prospecting and compensation due to the Menominee Indian Tribe, added 18 U.

S. C. § 842(p) making it an offence "to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction" either intending or knowing that the learner/viewer intends "that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence". 30][31] This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes. [32] The law was first successfully used against an 18 year old anarchist in 2003, for distribution of information which has since been republished freely. [33] Private actors A sign prompted by the Pruneyard case. A major issue in freedom of speech jurisprudence has been whether the First Amendment merely runs against state actors or whether it can run against private actors as well.

Specifically, the issue is whether private landowners should be permitted to utilize the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers' First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions, notably in the case Pruneyard Shopping Center v. Robins. Censorship Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press and mass publishing meet with some restrictions. Some of the recent issues include: * United States military censoring blogs written by military personnel * The Federal Communications Commission (FCC) censoring television and radio, citing obscenity, e. g. , Howard Stern and Opie and Anthony (Though the FCC only has the power to regulate over the air broadcasts and not cable or satellite television or satellite radio) See also Roth v. United States * Scientology suppressing criticism, citing freedom of religion, e. . , Keith Henson * Censoring of WikiLeaks at the Library of Congress As of 2002, the United States was ranked 17th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders. "The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the September 11 attacks, several journalists have been arrested for crossing security lines at some official buildings. In the 2006 index the United States fell further to 53rd of 168 countries; indeed, "relations between the media and the Bush administration sharply deteriorated" as it became suspicious of journalists who questioned the "war on terrorism". The zeal of federal courts which, unlike those in 33 U. S. states, refuse to recognize the media’s right not to reveal its sources, even threatened journalists whose investigations did not pertain to terrorism. The United States improved, moving up to 48th place in 2007, however, and to 20th in 2010. Barack Obama’s election as president and the fact that he has a less hawkish approach than his predecessor have had a lot to do with this. "[34] Internet speech In a 9-0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision which struck down portions of the 1996 Communications Decency Act, a law that prohibited "indecent" online communication (that is, non-obscene material protected by the First Amendment). The court's decision extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet.

Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). The Court again ruled that any limitations on the internet were unconstitutional in American Civil Liberties Union v. Ashcroft (2002). In United States v. American Library Association (2003) the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install filters as a condition of receiving federal funding.

The justices said that any First Amendment concerns were addressed by the provisions in the Children's Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites. Freedom of speech by country From Wikipedia, the free encyclopedia Jump to: navigation, search This article is about freedom of speech in specific jurisdictions. For the concept itself, see Freedom of speech. Part of a series on| Liberty| | Concepts| * Positive liberty * Negative liberty * Social liberty * Rights * Free will * Moral responsibility| By type| Academic * Civil * Economic * Intellectual * Morphological * Political * Scientific| By right| * Assembly * Association * Choice * Education * Information * Movement * Press * Religion * Public speech * Thought| * v * t * e| Part of a series on| Censorship| | Media regulation| * Books * Films * Internet * circumvention * Music * Post * Press * Radio * Speech and expression * Thought * Video games| Methods| Bleeping * Book burning * Broadcast delay * Burying of scholars * Censor bars * Chilling effect * Concision * Conspiracy of silence * Content-control software * Euphemism * Minced oath * Expurgation * Fogging * Gag order * Heckling * Internet police * Memory hole * National intranet * Newspaper theft * Pixelization * Prior restraint * Propoganda * Purge * Revisionism * Sanitization * Self-censorship * Speech code * Strategic lawsuit * Verbal offence * Whitewashing * Word filtering * Damnatio memoriae| Contexts| Blasphemy * Criminal * Corporate * Hate speech * Ideological * Media bias * Moralistic fallacy * Naturalistic fallacy * Politics * Religion * Suppression of dissent * Systemic bias| By country| * Censorship * Freedom of speech * Internet censorship| * v * t * e| Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression.

The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with relatively authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms (see propaganda model) and there are different approaches to issues such as hate speech, obscenity, and defamation laws even in countries seen as liberal democracies.

Contents * 1 International law * 2 African continent * 2. 1 South Africa * 2. 2 Sudan * 3 Asia * 3. 1 Hong Kong * 3. 2 India * 3. 3 Indonesia * 3. 4 Iran * 3. 5 Japan * 3. 6 Malaysia * 3. 7 Pakistan * 3. 8 People's Republic of China (mainland) * 3. 9 Philippines * 3. 10 Saudi Arabia * 3. 11 South Korea * 3. 12 Thailand * 4 Australia * 5 Europe * 5. 1 Council of Europe * 5. 2 European Union * 5. 2. 1 Czech Republic * 5. 2. 2 Denmark * 5. 2. France * 5. 2. 4 Germany * 5. 2. 5 Greece * 5. 2. 6 Hungary * 5. 2. 7 Ireland * 5. 2. 8 Italy * 5. 2. 9 Malta * 5. 2. 10 The Netherlands * 5. 2. 11 Poland * 5. 2. 12 Sweden * 5. 2. 13 United Kingdom * 5. 3 Norway * 5. 4 Switzerland * 5. 5 Turkey * 6 North America * 6. 1 Cuba * 6. 2 Canada * 6. 3 United States * 7 South America * 7. 1 Brazil * 8 See also * 9 References * 10 Further reading * 11 External links| International law Wikisource has original text related to this article: Universal Declaration of Human Rights| Main article: Freedom of speech (international) The United Nations Universal Declaration of Human Rights, adopted in 1948, provides, in Article 19, that: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [1] Technically, as a resolution of the United Nations General Assembly rather than a treaty, it is not legally binding in its entirety on members of the UN.

Furthermore, whilst some of its provisions are considered to form part of customary international law, there is dispute as to which. Freedom of speech is granted unambiguous protection in international law by the International Covenant on Civil and Political Rights which is binding on around 150 nations. In adopting the United Nations Universal Declaration of Human Rights, Ireland, Italy, Luxembourg, Monaco, Australia and the Netherlands insisted on reservations to Article 19 insofar as it might be held to affect their systems of regulating and licensing broadcasting. 2] African continent Protesters use freedom of speech to hold a vigil in front of the Zimbabwean Embassy in London, 2005. The majority of African constitutions provide legal protection for freedom of speech. However, these rights are exercised inconsistently in practice. The replacement of authoritarian regimes in Kenya and Ghana has substantially improved the situation in those countries. On the other hand, Eritrea allows no independent media and uses draft evasion as a pretext to crack down on any dissent, spoken or otherwise.

One of the poorest and smallest nations in Africa, Eritrea is now the largest prison for journalists; since 2001, fourteen journalists have been imprisoned in unknown places without a trial. Sudan, Libya, and Equatorial Guinea also have repressive laws and practices. In addition, many state radio stations (which are the primary source of news for illiterate people) are under tight control and programs, especially talk shows providing a forum to complain about the government, are often censored. Also countries like Somalia and Egypt provide legal protection for freedom of speech but it is not used publicly.

See also: Censorship in Algeria, Censorship in Tunisia. South Africa South Africa is probably the most liberal in granting freedom of speech, however in light of South Africa's racial and discriminatory history, particularly the Apartheid era, the Constitution of the Republic of South Africa of 1996 precludes expression that is tantamount to the advocacy of hatred based on some listed grounds. [3] Freedom of speech and expression are both protected and limited by a section in the South African Bill of Rights, chapter 2 of the Constitution.

Section 16 makes the following provisions: § 16 Freedom of expression (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. (2) The right in subsection (1) does not extend to- (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

In 2005, the South African Constitutional Court set an international precedent in the case of Laugh It Off Promotions CC v South African Breweries International when it found that the small culture jamming company Laugh-it-Off's right to freedom of expression outweighs the protection of trademark of the world's second largest brewery. [4] Sudan Blasphemy against religion is illegal in Sudan under Blasphemy laws. [5] Asia Several Asian countries provide formal legal guarantees of freedom of speech to their citizens. These are not, however, implemented in practice in some countries.

Countries such as Myanmar, North Korea and some Central Asian Republics are reported to brutally repress freedom of speech. [citation needed] Freedom of speech has improved somewhat in the People's Republic of China in recent years,[citation needed] but the level of free expression is still far from that of Western nations. There is no clear correlation between legal and constitutional guarantees of freedom of speech and actual practices among Asian nations. Hong Kong Under Hong Kong Basic Law, * Hong Kong residents shall have freedom of speech. [6] The freedom of the person of Hong Kong residents shall be inviolable. [7] * The freedom and privacy of communication of Hong Kong residents shall be protected by law. [8] India Main article: Freedom of press in India See also: Censorship in India The Indian Constitution guarantees freedom of speech to every citizen and there have been landmark cases in the Indian Supreme Court that have affirmed the nation's policy of allowing free press and freedom of expression to every citizen. In India, citizens are free to criticize politics, politicians, bureaucracy and policies.

The freedoms are comparable to those in the United States and Western European democracies. Article 19 of the Indian constitution states that: All citizens shall have the right — 1. to freedom of speech and expression; 2. to assemble peaceably and without arms; 3. to form associations or unions; 4. to move freely throughout the territory of India; 5. to reside and settle in any part of the territory of India; and 6. to practise any profession, or to carry on any occupation, trade or business. [9] These rights are limited so as not to effect: * The integrity of India * The security of the State Friendly relations wi

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