Free Speech in a Liberal Democratic Society

 From a legal point of view, it is apparent that both international treaties and domestic legislations restrict free speech based on intellectual property, crime, morality, discrimination, media, information and security laws. At the same time, however, freedom of speech has been backed up by a number of domestic, regional and international laws to ensure it is not undermined or abused. This leads to the question of where should the line be drawn and the extent of freedom of speech. This essay will analyse the current status of free speech in a liberal democratic society. The discussion will include both a legal, theoretical comparison between the different legislations and an analysis about how they interfere with the right to free speech.

It is evident that in a liberal democratic society freedom of expression is highly valued based on various legislations.[1] In fact, it has been described as the core value of a democratic society as it enhances its powers and builds a sustainable future.[2] It is the view of Fuller, an American legal theorist, that free speech is crucially important to human survival.[3] In addition, he views free expression as an inherent aspect of natural law as it maintains, opens up and safeguards the integrity of the channels of connection through which people communicate what they desire, perceive and feel.[4] This is bolstered by Dworkin who believes that policies and laws are only legitimate if they are implemented democratically. As such, freedom of expression is a condition of legitimate government.[5] Moreover, Mill viewed free speech as a necessity for a flourishing society and individual happiness and he defended extensive freedom of expression.[6] Dworkin also criticised what he calls individuals being ‘passive victims of collective action’ because imposing a collective decision on an opposing individual is illegitimate as free speech is the lifeblood of democracy.[7] Furthermore, regulating freedom of expression is not the best way to combat intolerance as such a quick fix solution might leave the issue unresolved.[8] Quite the opposite, history shows that censorship is likely to make undesirable speech more attractive.[9] This is why Heinze even criticised the regulation of hate speech as inherently discriminatory due to its selective nature.[10]

In addition to the legal theory, free speech is protected by a number of international and regional laws. Based on Article 19 of the General Assembly Resolution (GAR) in 1948, some sort of customary international law imposes legal force which might not necessarily be binding on states, yet many of its provisions are binding.[11] This is also strengthened by Article 19 of the Universal Declaration of Human Rights (UDHR) which states that: ‘Everyone has the right to freedom of opinion and expression, the freedom to hold opinions without interference and to see, receive and import information.’[12] Furthermore, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) emphasises the right to communicate ideas through any kind of media ‘regardless of frontiers’.[13] It also ensures the freedom to receive and seek information, which embeds a number of the rights within the UDHR.[14] Hence, Article 19 of the ICCPR imposes its framework and provisions that states parties to the ICCPR should implement at a national level.[15] Alongside the ICCPR,[16] the right of free speech is granted in regional treaties such as the American Convention on Human Rights (ACHR) (Article 13),[17] the European Convention on Human Rights (ECHR) (Article 10)[18] and the African Charter on Human and Peoples’ Rights (ACHPR) (Article 9).[19]

Even free speech advocates recognise the importance of limiting and framing free expression which is also enhanced by statutory instruments.[20] For instance, it is the view of Judge Oliver Holmes that shouting fire in a packed theatre should not be seen as a form of freedom.[21] He added: ‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent as it is a question of proximity and degree.’[22] Similarly, Meiklejohn argued that demanding free expression by self-governed men does not mean every person has an unalienable right to express themselves wherever, however and whenever they want.[23] Hence, people should only do so through the appropriate channels.[24]

Promoting equality is perhaps more important than maintaining an absolute free expression policy in a liberal democratic society. This should be the case as some forms of speech are harmful which imposes an obligation on the State to maintain the protection of free society.[25] This contradicts Mill who conditioned freedom of expression upon progressive society as the main priority.[26] Yet, Mill’s view has been criticised by civil rights theorists as it supports individualism, while equality should be the priority for a democratic society.[27] Besides the harm principle proposed by Mill, Fienberg proposed what is called the offence principle as a way of drawing a line between what should and should not be acceptable in free speech.[28] Moreover, Waldron criticised Dworkin’s proposal which supported absolute free speech as he believes in regulating speech because it will promote equality and include minorities in the democratic process.[29] According to Lord Devlin, the public good should prevail over the rights of the individual; thus, the morals of society have to be enforced by law. This prevents the disintegration of society which is an advantage of having a shared morality policy.[30] Based on this argument, regulating free speech does not violate the liberal democratic society norms as it ensures equality and morality. In addition, it would probably be better if undesirable free speech did not occur in the first place.

Aside from the theoretical aspect of the dilemma, freedom of speech is limited by human rights instruments as it is not absolute.[31] Based on the three stage test in Article 19(3) of the ICCPR, restricting speech is a legitimate action if the required criteria are followed.[32] First, the intervention should be in compliance with the law and should be ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.[33] Second, the legally enforced intervention should pursue a legitimate aim such as protection of national security, public morals, health or order or protecting the reputation and rights of others.[34] Third, there should be a necessity for the restriction towards a legitimate aim. The ECHR summarised this by stating that: ‘Freedom of expression is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.’[35]
Based on Lingens v Austria,[47] and Handyside v UK,[48] it seems that restricting free speech is a legitimate action that does not violate free expression since it is done for a necessary and appropriate reason. The Human Rights Committee emphasised in Shin v ROK[49] that even if the expression violates the law, Article 19(3) requires the State to explain the importance of implementing these measures.[50] As a result, even though national and international law perceives the importance of implementing grounds to restrict free speech,[51] it should fall within the specified criteria based on the test.[52] Thus, the restrictions are implemented to safeguard and stop people from abusing freedom. It seems at this stage that there is no clear violation on the right of free expression as the imposed limitations are appropriate to the nature of liberal democratic society.[53]

According to Mill, different views and opinions are valuable to society either because of the truth behind the argument or if it is false because this contributes and reinforces the truth and its emergence.[54] He argued that ‘to refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty … all silencing of discussion is an assumption of infallibility’.[55] This argument was followed in the case of Mavlonov v Uzbekistan as Article 19(2)[56] had been violated due to the State not having sufficient grounds to fulfil Article 19(3).[57] In fact, the UN Human Rights Committee held that the authorities should have allowed free expression of a newspaper as well as the right to receive ideas and information.
Based on the harm principle introduced by Mill, freedom of speech should not lead to discrimination and harm to any members of society. If this could be avoided, it would lead to a flourishing and healthy society, which is a fundamental aspect of a liberal democratic society.[76] According to Article 26 of the ICCPR, hate and discrimination speech are prohibited by customary international law to avoid causing harm. This clearly states that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law on any ground such as race, colour, sex, language, religion, political or other opinion …’.[77]

To summarise, it is clear at this stage that there are enough legal grounds to restrict freedom of expression. This is also bolstered by a number of legal theorists who are in favour of restricting free speech. The argument is over the extent that the source of freedom which is the State should try to balance equality and liberty. It has been argued that regulating free expression is a mechanism for enhancing free speech which is not an absolute right. On the other side, some debaters claim that the truth shall only be revealed by having diverse opinions. Nowadays, there has been an increase in anti-discrimination and equality laws which have curtailed in limited circumstances free speech. There are number of legislations for restricting free speech such as Article 19(3) of the ICCPR,[78] Article 10(2) of the ECHR,[79] Section 2 of the CCRF,[80] as well as number of domestic legislations in the UK.[81] However, Article 19(3) of the ICCPR is conditioned on three grounds: first, the intervention should be in compliance with the law; second, the legally enforced intervention has to pursue a legitimate aim; third, there is a necessity for the restriction. Based on the given grounds, it seems that there are legitimate bases for restricting free speech which does not violate the rights of a liberal democratic society but rather helps to protect the society. 

Article 19, Prohibiting Incitement to Discrimination, Hostility or Violence (Article 19 2012)

Barendt E, Freedom of Speech (2nd edn, Oxford University Press 2005)

Beatson J and Cripps YM, Freedom of Expression and Freedom of Information (Oxford University Press 2002)

Devlin P, The Enforcement of Morals (Oxford University Press 1965)

Feinberg J, Harm to Others: The Moral Limits of the Criminal Law (Oxford University Press 1984)

Fiss OM, The Irony of Free Speech (Harvard University Press 1998)

Fuller LL, The Morality of Law (Yale University Press 1969) 

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