Limitation and Regulation of Free Speech
Problems surrounding free speech have become increasingly widespread with the advent of the internet and, by extension, social media. Though most democratic countries agree that “[e]veryone has the right to freedom of opinion and expression,” there are many different schools of thought focusing on to what extent speech should remain free (UN General Assembly art. 19). Many countries approach free speech differently, from restrictions of Nazism in Germany to criminalizing “hate speech” online in the United Kingdom, to the belief that the government shall make no law “prohibiting the free exercise thereof; or abridging the freedom of speech” (U.S. Const. amend I).
There is no international consensus on how to regulate free speech. In the United Kingdom arrests for “offensive” speech online have totaled 2,130 people from 2010 to 2015 (Gale). This has been criticized by many as unnecessarily restrictive–some drawing parallels to an Orwellian dystopia–while others believe this allows for hateful speech that gives no overall contribution to society to be removed from the public eye. A similar policy is followed in Germany regarding Nazism, in which one who “domestically distributes or publicly uses… symbols of one of the parties or organizations indicated” can receive jail time up to three years (StGB § 86a). Policies akin to those of many European democracies contrast classical liberal ideas of free speech, which believe that the “peculiar evil of silencing… expression” is that it robs the “human race.” (Mill).
This classical notion is more closely followed by the United States, as outlined by the First Amendment and numerous other landmark cases from the Supreme Court. Proponents believe that it is the duty of society as a whole to discredit bad or otherwise hateful ideas and replace them with logical, well-thought out plans. This, however, is criticized as being antithetical to human nature, especially with the unprecedented level of connectivity granted by the internet.Advocates of classical notions of free speech generally believe that any restriction–barring direct threats of illegal activity, violence or libel–should never be restricted and that such restrictions would lead to abuse of governmental power or overall degradation of intellectual discourse. On the other hand, proponents of the censorship of free speech generally believe that some forms of “hate speech” –provides nothing to intelligent discourse and that limiting it is better for the overall harmony of the general public.
“Hate speech” is defined as “speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits” (ABA).There are currently two dominating philosophies towards free speech in the democratic western world: those championed by countries such as the United States and those championed by many European countries. The effects of the Second World War and the denazification efforts undertaken by many countries–most notably in Germany and Austria–helped to shape the modern European approach to free speech. This is laid out in the 1950 European Convention on Human Rights Article 10 in which it is stated that “[e]veryone has the right to free speech.” This, however, comes with an important caveat–section two of Article 10 states that this guaranteed free speech comes with “duties and responsibilities,” which may be subject to “restrictions or penalties.” Proponents of these laws believe that it is both prudent and necessary for modern democracies to limit speech that does not contribute or even detracts from rational discourse.
Key controversies surrounding this are those of Holocaust denial, anti-semitism, and Islamophobia. European law is homogeneous with respect to Holocaust denial and promotion of tenants of Nazism or any otherwise discriminatory ideologies or beliefs–it is an arrestable offense in Germany, France, and the United Kingdom. These numerous laws all encompass the overriding philosophy that European democracies embrace: that the “democratic collective” is more important than that of the individual’s right to self-expression (Feldman). A recent law passed in Poland showcases European restrictions concerning the Holocaust. The new law now makes it a “criminal offense” to mention “Polish complicity” in the Holocaust (Eglash and Selk). This has been highly criticized by the Israeli Ministry of Foreign Affairs and by the Israeli Prime Minister Netanyahu.
Many historians caution against “trying to simplify” Poland in the Holocaust and that restrictive laws such as this stifle academic freedoms and could lead to the suppression of history. Polish officials, state that this law attempts to prevent people from “slandering” the “good name of Poland.” This again shows the primarily European notion that the overall health of the state and democratic collective can override the individual’s right to expression. The notion of the state or overall societal benefit trumping the individual is not the only argument for greater restrictions. Ph.D. student Jesper Ahlin instead posits the notion that classical liberalism has not failed, but is simply “underexplored.” Ahlin bases this argument off of 19th-century philosopher John Stuart Mill’s work On Liberty, in which Mill puts forward the idea that no opinion should be silenced, for if it is wrong civil discourse will prove it as such and if it is correct something will be learned.
Ahlin, however, puts forward the notion that this philosophy is no longer feasible in the modern world. He argues that the modern world the rich and power are able to control the media and “distort information” to benefits their aims. This, and the advent of “fake news,” prevents the general public from making a clear character assessment of highly complex information, and as such requires oversight in the form of laws or regulations. However, proponents of classical liberalism view speech differently. Mill, in his work On Liberty, proposes what is now known as the “harm principle.” This states that free speech may be limited to “prevent harm.” This includes blackmail, slander, libel, and advertising directly harmful products to children. However, many disagree what constitutes as causing harm.
Historically this exception of harm has been interpreted as causing direct harm. Mill uses the example of an inflammatory statement saying that corn dealers starve the poor. This, he argues, is not inherently harmful when expressed in print, yet would cause harm if said to an “angry mob” (van Mill).The point of significant contention with freedom of speech has, as of late, been hate speech. Neo-nazi and white supremacist movements such as “Unite the Right” in Charlottesville showcase the rising tensions (Stolberg and Rosenthal). This begins to muddy the waters between what constitutes harm and what is permissible under Mill’s harm principle. However, Mill is clear in this regard: legal sanctions should not be imposed unless directly harmful. However, governmental intervention is not the only concern.
Mill is also worried by the usage of societal pressure to silence the minority, termed “social justice”. He sees that the “tyranny of the majority” could lead to the silencing of minority opinions through threats. Mill was an English philosopher, publishing On Liberty in 1859. As such this information is somewhat dated, but despite this Mill has been a large influence on liberalism. This provides this source with a large degree of credibility in spite of its age. Despite his opposition towards most restrictions of free speech, Mill supports the notion of social disapprobation. He argues that there are cases which shouldn’t be “legally interdicted,” but that “may rightly be prohibited” (van Mill). Though this seems to be the antithesis of his earlier ideas, he then clarifies. Mill believes that those who would spew hate speech could, and should, be openly persuaded, criticized, or cajoled.
This showcases the idea of freedom from legal consequences, but not social ones. His final point is that though those acting in malice might have an impact on others, it is near impossible to directly link it back to his harm principle and as such should only suffer public criticism and disapproval, not legal action. US law is, however, fairly clear in this matter. Free speech is seen by many as one of the founding principles of America, and this right has been upheld in numerous Supreme Court Cases. Two key cases regarding the right to protest in schools are that of the West Virginia Board of Education v. Barnette and Tinker v. Des Moines Independent School District. In the former, the court voted 6-3 that saluting the flag by schoolchildren was non-compulsory.
The majority opinion, written by Justice Robert Jackson, sums up many classical ideals. Justice Jackson argued that “no official” has the right to decide what is “orthodox” in relation to “politics, nationalism, or religion.” This supports the priority of individual freedoms espoused by supporters of little restrictions. In Tinker, it was upheld that students had the right to wear armbands in protest as long as it does not cause a disruption to classes. This case is important in upholding the right of students to peacefully protest. Justice Fortas in his majority opinion stated that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
This has been essential for over fifty years in determining the right of educators and students, an important cornerstone of the classical liberal notion that free speech being restricted leads to the degradation of education.After careful consideration one can conclude that there is a fine line between the degradation of human rights versus the overall benefit to society. When I first began this paper I was an ardent supporter of little to no restrictions on free speech. However, after the research conducted for this essay I have found that my view has turned more neutral. I believe this has allowed me to empathise more clearly with the European perspective, as many countries have a dark history to deal with and refuse to allow extremism to return.
Despite this, I still believe that having governmental restrictions on free speech is a slippery slope, and if the law is not completely clear and thorough that these laws can lead to abuse of power. Although I feel as if research conducted for this paper gives a good opening to this topic, more research is critical in two areas: philosophy and case studies. Due to the nature of the problem philosophical discussions play a key part in deciding any policies, a difficult and somewhat ambiguous field of study. Secondly, real life examples need to be both conducted and studied extensively. Specifically, studies concerning the effect of “fake news” on the general population and the effects of extremist rhetoric need to be expanded. This would allow for explicit facts and statistics to back up what is now a relatively feelings based debate.
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Limitation and Regulation of Free Speech. (2021, Mar 27). Retrieved from https://papersowl.com/examples/limitation-and-regulation-of-free-speech/
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