Freedom To Speak, Part 1: The World and Principles

1 September 2017

Freedom To Speak, Part 1: The World and Principles

Photo credit: wiredforlego (Flickr) — CC BY-NC 2.0 licence.

Here in Australia, we consider ourselves quite “lucky”. I can put pretty much whatever I like on Facebook and know that police won’t be showing up at my door; unless I start posting about bombs, or assassination, or terrorism, perhaps — but even then, it depends on the context. I could be talking about water bombs, the mafia card game, and Counterstrike.

But, though I may not be getting a visit by the police, there are some things that would be directly removed by Facebook itself. This is a direct quote from Facebook’s Community Standards:

People use Facebook to share their experiences and to raise awareness about issues that are important to them. This means that you may encounter opinions that are different from yours, which we believe can lead to important conversations about difficult topics. To help balance the needs, safety and interests of a diverse community, however, we may remove certain kinds of sensitive content or limit the audience that sees it.

But this isn’t just a phenomenon of the online world that we are residing in ever more readily. As we’ve seen from the recent Charlottesville riots, people that represent positions currently regarded as “extreme” by a majority are becoming more vocal and active — and more supported.

But how much of this is just them exercising their right to freedom of speech — and how much crosses over into hate speech? And is hate speech free speech?

Article 19 of the Universal Declaration of Human Rights declares:

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.

Further, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) declares:

1. Everyone shall have the right to hold opinions without interference.

2. 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.

However, the ICCPR also included an exception to this:

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

A further addition to these can be found in the second half of Article 20:

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

These two “certain restrictions” mentioned in Article 19 are represented well by two principles that we shall look to in a moment. First, however, let us turn to one of the more common exceptions to free speech, as is evidenced by Article 20 above — hate speech. This is defined by Dictionary.com as:

Speech that attacks, threatens, or insults a person or group on the basis of national origin, ethnicity, colour, religion, gender, gender identity, sexual orientation, or disability.

I’ll note that insulting people from particular groups such as these is the basis of much comedy — but perhaps that’s for another time.

Here, let me introduce you to what is referred to as the “harm principle”, an early suggestion to limit the extent of free speech by John Stuart Mill. It should be noted, however, that Mill is an avid supporter of free speech, and calls this the only limitation:

[T]he 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.

This remark echoes the “attacks” and “threatens“ aspects of hate speech above, and is respective of both Article 19.3(b), and Article 20.2 of the ICCPR. Another principle that is more recent is the “offence principle”, courtesy of Joel Feinberg. Feinberg believed that Mills’ principle did not go far enough, and states the following:

[I]t is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense…to persons other than the actor, and that it is probably a necessary means to that end…The principle asserts, in effect, that the prevention of offensive conduct is properly the state’s business.

This remark echoes the “insults” section of hate speech above, and is respective of ICCPR Article 19.3(a). But these are just principles, and international standards that should be followed. How does that play out? Check out Part 2: Australia and Online.