Freedom of speech at risk thank’s to Wikileaks

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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 and an elaborate system of censorship and control over scribes existed.[15] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture).[16] The origins of copyright law in most European countries lie in efforts by the church and governments to regulate and control the output of printers.[16] In 1501 Pope Alexander VI issued a bull against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.[15] While governments and church encouraged printing in many ways, which allowed 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 licences to trade and produce books.[16]

Title page of Index Librorum Prohibitorum, or List of Prohibited Books, (Venice 1564).

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. Milton made an impassioned plea for freedom of expression and toleration of falsehood,[17] stating:

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”[17]

Milton’s defence 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 favour of tolerance for a wide range of views.[17]

As the “menace” of printing spread governments established centralised control mechanism.[18] 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.[18]

A succession of English thinkers developed the idea of a right to freedom of expression, starting with John Milton (1608–74), then John Locke (1632–1704) and culminating in John Stuart Mill (1806–1873). Locke established the individual as the unit of value and the bearer of rights to life, liberty, property and the pursuit of happiness. It was the role of Government to protect these rights and this belief was first enshrined in the US Constitution, with the First Amendment adding the guarantee that “Congress shall make no law… abridging the freedom of speech, or of the press”. John Stuart Mill argued that human freedom is good and without it 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.[17] 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.[19]

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.”[20] Hall’s quote is frequently cited to describe the principle of freedom of speech.[21] 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.”[22] 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 on freedom of speech).[23] The European Union’s Framework decision on Racism and Xenophobia states that denying or grossly trivialising “crimes of genocide” should be made “punishable in all EU Member States”.[24] Holocaust denial is illegal in 16 countries: Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, and Switzerland.[25] In 2007 the Constitutional Court of Spain decided that Holocaust denial is protected under the right to freedom of speech and its criminalisation by law as unconstitutional, but that justifying the Holocaust was illegal.[26]

[edit] Democracy

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.[9] 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.[27]

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”.[28] 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 moral 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.”[29]

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.

Freedom of speech is the freedom to speak freely without censorship or limitation, or both. The synonymous term freedom of expression is sometimes used to indicate not only freedom of verbal speech but 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, such as on “hate speech“.

The right to freedom of speech 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). The ICCPR recognizes the right to freedom of speech as “the right to hold opinions without interference. Everyone shall have the right to freedom of expression.”[1][2] Furthermore freedom of speech is recognized in European, inter-American and African regional human rights law.

Concepts of freedom of speech can be found in early human rights documents[3] and the modern concept of freedom of speech emerged gradually during the European Enlightenment.[4] 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.[5] 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.”[6]

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.”[7]

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.[8] Based on John Stuart Mill‘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.[8]

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 expressionThe 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).[8] 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.[9] 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.[9] 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.[8] 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.

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