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Freedom of speech
>From Wikipedia, the free encyclopedia
Freedom of speech is often regarded as an integral concept in modern liberal democracies, where it is understood to outlaw censorship. Free speech is also supported by international human rights proclamations, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries. This article is about the general concept. For information about freedom of speech in different countries see Freedom of Speech (International).
The right to freedom of expression is not considered unlimited; governments may still prohibit certain damaging types of expressions. Under international law, restrictions on free speech are required to comport with a strict three part test: they must be provided by law; pursue an aim recognized as legitimate; and they must be necessary (i.e., proportionate) for the accomplishment of that aim. Amongst the aims considered legitimate are protection of the rights and reputations of others (prevention of defamation), and the protection of national security and public order, health and morals. Opinions vary widely among people different nations and cultures as to when restriction of free speech meets these criteria.
History of free speech
The philosopher Alexis de Tocqueville observed that people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression of speech is even more difficult to prevent than government suppression, there are questions about whether it truly falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action.
Theories of free speech
Introduction
It is important to understand the various theoretical rationales for freedom of speech if we are to form views about the concept's true nature and its rational limits. In part, the justification for free speech is a general liberal or libertarian presumption against coercing individuals from living how they please and doing what they want. However, a number of more specific justifications are commonly proposed for freedom of speech.
For example, Justice McLachlan of the Canadian Supreme Court identified the following in R v. Keegstra, a 1990 case on hate speech: (1) free speech promotes "the free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualisation of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression.
Such reasons perhaps overlap. Together, they provide a widely accepted rationale for the recognition of freedom of speech as a basic political or civil liberty.
Each of these justifications can be elaborated in a variety of ways and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications, or a justification relating to self-governance. They relate to aspects of free speech's political role in a democratic society. The second is related to the discovery of truth. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy.
This analysis suggests a number of conclusions. First, there are powerful overlapping arguments for free speech as a basic political principle in any liberal democracy. Second, however, free speech is not a simple and absolute concept but a liberty that is justified by even deeper values. Third, the values implicit in the various justifications for free speech may not apply equally strongly to all kinds of speech in all circumstances.
Self-governance
Freedom of speech is crucial in any democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms that can pave the way for their replacement. The US Supreme Court has spoken of the ability to criticize government and government officials as "the central meaning of the First Amendment." New York Times v. Sullivan. But "guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government." Time, Inc. v. Hill
Some suggest that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.
However, it may be argued that some restrictions on freedom of speech may be compatible with democracy or even necessary to protect it. For example, such arguments are used to justify restrictions on the support of Nazi ideas in post-war Germany.
Discovering truth
A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. This argument is particularly associated with the British philosopher John Stuart Mill. Justice Oliver Wendell Holmes wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." In Abrams v. United States Justice Holmes also invoked the powerful metaphor of the "marketplace of ideas."
This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.
The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur in the interim. However, even if these weaknesses of the marketplace of ideas are acknowledged, supporters argue that the alternative of government determination of truth and censorship of falsehoods is worse.
Alan Haworth in his book Free Speech (1998), has suggested that the metaphor of a marketplace of ideas is misleading. He argues that Mill's classic defence of free speech, in On Liberty, does not develop the idea of a market (as later suggested by Holmes) but essentially argues for the freedom to develop and discuss ideas in the search for truth or understanding. In developing this argument, Haworth says, Mill pictured society, not as a marketplace of ideas, but as something more like a large-scale academic seminar. This implies the need for tacit standards of conduct and interaction, including some degree of mutual respect. That may well limit the kinds of speech that are justifiably protected.
Another way of putting this point is to concede Mill's claim that freedom of speech of certain kinds is needed for rational inquiry. This can support the claimed need to protect potentially unpopular ideas. However, it can then be added that this does not necessarily lead to the conclusion that a wide range of speech, including offensive or insulting speech, must be given the same protection.
As put by Mill, the argument can also be seen as somewhat elitist, since it may seem that relatively little speech or expression appeals primarily to the intellect. However, there are senses in which this justification can be extended beyond the speech of individuals who are involved in narrowly intellectual inquiry, such as scientists and academic scholars. In one sense, it merges with justifications based on autonomy, if it is interpreted as relating to the psychological need felt by individuals to pursue truth and understanding. In another sense, it may be extended to the protection of literature and art that has a claim to some kind of social value.
Advancing autonomy
Another rationale is that freedom of speech is an essential aspect of personhood and autonomy. It has been said, for example, that political protest is a form of self-definition, self-fulfillment, or self-realization, even if the protestor believes the protest to be futile. This idea also suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.
Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit - a spirit that demands self-expression." (Procunier v. Martinez, 416 U.S. 396, 1974). This view is sometimes developed further by referring to the importance for individuals of communicating deeply held beliefs and the value of creativity as expressed in literature, art and many other ways. The issue here is how we should treat other individuals as moral and psychological beings who have a need for self-expression and self-fulfilment.
Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfilment.
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Promoting tolerance
Still another explanation is that freedom of speech is integral to tolerance, which some people feel should be a basic value in society. Professor Lee Bollinger is an advocate of this view and 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." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society".
This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.
Restrictions of Free Speech
Various governing, controlling, or otherwise powerful bodies, in many places around the world have attempted to change the opinion of the public or others by taking action that allegedly disadvantages one side of the argument. This attempt to assert some form of control through control of discourse has a long history and has been theorized extensively by philosophers like Michel Foucault. Many consider these attempts at controlling debate to be attacks on free speech, even if no direct government censorship of ideas is involved. Alleged examples include the following:
* Some consider the deportation of a foreign peace activist Scott Parkin from Australia in September 2005 to have been an attack on free speech, claimed by the federal government to be a risk to national security.
* In Finland, a new copyright law was enacted in October 2005, which prohibited communication about certain encoding methods and bypassing them. * Gunns Limited, a Timber and woodchip product company in Australia (Gunns Website <http://www.gunns.com.au/> ) is suing 17 individual activists, including Federal Greens Senator Bob Brown, as well as three not-for-profit environmental groups, for over 7.8 million dollars. Gunns claims that the defendants have sullied their reputation and caused them to lose profits, the defendants claim that they are simply protecting the environment. The defendants have become collectively known as the Gunns 20 (Friends of the Gunns 20 <http://www.gunns20.org/> ). Although this example involves a private law suit, not government censorship, some claim that it is an abuse of defamation law, since it is intended to tie up the environmental activists in court procedings, during which time Gunns intend to build a Pulp Mill in northern Tasmania. According to this view, the plaintiffs are not genuinely seeking to vindicate their reputations and they are seeking to scare off other activists with the prospect of ruinous legal expense. Such cases raise interesting questions about the extent to which powerful corporate interests should have access to defamation law. * In the UK Parliament passed the Serious Organised Crime and Police Act in 2005 banning protest without permit within 1km of Parliament. The first conviction under the Act was in December 2005, when Maya Evans was convicted for reading the names of British soldiers and Iraqi civilians killed in the Iraq War, under the Cenotaph in October, without police permission. [1] <http://news.bbc.co.uk/1/hi/england/london/4507446.stm>
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The Internet
The development of the Internet opened new possibilities for achieving freedom of speech using methods that do not depend on legal measures. Pseudonymity and data havens (such as Freenet) allow free speech, as the technology guarantees that material cannot be removed (censored).
Websites which fall foul of government censors in other countries are often re-hosted on a server in a country with no such restrictions. Given that the United States has in many respects the least restrictive governmental policies in the world on freedom of speech, many of these websites re-host their content on an American server and thus escape censorship while remaining available to their target audience. This is especially the case with neo-nazi and other sites promoting racial hatred, since these are prohibited in a number of European countries. It should be mentioned, however, that the US Government has attempted to regulate certain acts and speech on the Internet (US v. Baker).
The Electronic Frontier Foundation (EFF) is an organization dedicated to protecting freedom of speech on the Internet.
The Chinese government has developed some of the most sophisticated forms of internet censorship in order to control or eliminate access to information on sensitive topics such as the Tiananmen Square protests of 1989, Falun Gong, Tibet, Taiwan, pornography or democracy. They have also enlisted the help of some American companies like MSN, who have subsequently been criticized by proponents of freedom of speech.