5.4.5  The Legal Right to Freedom of Speech

(This is an archived extract from the book Patterns of Power: Edition 2)

Freedom of speech is regarded as being of prime importance in Western culture.  It is protected by the First Amendment of the American Constitution, for example:

“Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.[1]

As discussed in the next chapter (6.8.3.2), freedom of speech is essential to the working of any political system – particularly in a democracy.  The American founding fathers wanted to ensure that the government could not become an oppressor of the people by restricting their ability to express dissent; (the British colonial government had been seen as unfair).

In view of this important role for free speech, it is worth asking whether there should be any limitations to it.  It is suggested here that some exceptions might be negotiated to prevent people from directly causing harm to others:

·      Freedom of speech cannot be asserted as a licence to commit crimes that would be prosecuted if speech were not a component of them.  For example, in a famous ruling, Justice Oliver Wendell Holmes said:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Thomas Scanlon quoted this and also identified examples of battery, assault, defamation, conspiracy and incitement where freedom of speech would not necessarily provide a defence.[2]  It is self-consistent for the law to prohibit incitement to any act which would be illegal.  A notorious example, which was not prevented by the law in India at that time, was the BJP incitement to destroy the mosque at Ayodhya – which led to considerable violence.[3]

·      Among the restrictions which people are likely to agree upon are those already referred to in the Economic Dimension (3.3.1): consumer protection, trade descriptions, intellectual property rights, fraud etc.  These form part of the law, and they are all examples of restrictions to the freedom of speech in exchange for the benefit to the economy and for the protection of other people.

·      There are also some restrictions that might be considered necessary in relation to national security, particularly in times of conflict; a spy cannot use freedom of speech to justify passing official secrets to a potential enemy, for example.

·      It can be argued that incitement to revolution, to overthrow a government, is so dangerous that it should be banned.  The Chinese government, mindful of the millions of lives lost in past rebellions, has adopted this approach in several cases.[4]

This last example is perhaps the most difficult of those quoted here in relation to the problem of trying to use the law to restrict free speech in order to protect society.  There is always the risk of undermining people's ability to participate in the negotiation of their governance by criticising a government. 

The use of civil disobedience to express political views is, by definition, a breach of the law – yet it has sometimes played a historical part in initiating changes which were subsequently accepted and approved by the legislature.  A mass trespass was the signal for people’s desire to change the relationship between landowners and ramblers as described above (5.4.1.2), for example.[5]  A judge has no alternative but to find defendants guilty if the law has been broken, but the sentencing might be lenient to take account of a motivation to benefit society.  Without civil disobedience, there might be no mechanism for initiating a renegotiation of some laws.

Given the problems associated with legislating to ban aspects of free speech, it is worth asking whether other aspects of the law might provide a more appropriate mechanism for protecting people against malicious behaviour.  One such mechanism is to rely upon people's ability to take each other to court for any damages that they have incurred, using the law of torts (5.2.4), but that has two serious disadvantages: the cost might prevent many people from being able to bring a prosecution; and the further publicity provided by the court case might exacerbate the damage caused.

All societies face these problems and it is safe to say that no society has decided to allow anybody to say whatever they please without regard to the truth or to potential adverse consequences.  Given the importance of free speech, as described at the start of this section, it is appropriate to exercise reluctance to use the law to limit it in any way other than, perhaps, the possible exceptions that were listed.  Societies choose their own criteria for where to set the line between what is permissible free speech and what is not.  It is one of their most difficult and sensitive negotiations.

© PatternsofPower.org, 2014