5.4.5 Legal Limits to Free Speech

A few legal limits to free speech are necessary, to protect society, but otherwise freedom of speech is a high priority.

Freedom of speech is an agreed human right, as in Article 19 of the Universal Declaration of Human Rights (Appendix 1):

“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.”

And free speech is widely protected in law , as in the First Amendment to 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”.

As discussed in the next chapter (6.8.3), 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 stopping them from expressing dissent (the British colonial government having been seen as dictatorial).

In view of the importance of free speech, it is worth asking whether there should be any limitations to it – but several are listed in The British Human Rights Act 1998:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

No society allows anybody to say whatever they please without regard to the truth or to potential adverse consequences.  Restrictions should only be imposed where is a strong justification, though.  The British list above points to several acceptable legal limits to free speech, some of which are examined below in separate sub-sections:

●  It is self-consistent for the law to prohibit incitement to any act which would be illegal (5.4.5.1). Persuading someone else to commit a crime increases the risk of that crime being committed.

●  Free speech is an important part of democracy, but national security must be protected in any political system (5.4.5.2). An authoritarian government might take a stricter view of public criticism of it, in the interests of political stability, but it still needs to be able to hear private comment.

●  The rights of others should be protected (5.4.5.3). Intimidation and online abuse, intended to deter others from expressing their views, is an infringement of their rights.  There is a case for making social media companies responsible for removing harmful content.

●  It is possible to justify banning various kinds of lying, such as perjury and libel (defamation), but it is hard to ban fake news without using State censorship – which might be used to suppress dissent (5.4.5.4).

There is a further need to limit free speech in order to avoid ethnic conflict.  This topic is so important and wide-ranging that it is the subject of a separate section: next (5.4.6).

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This page is intended to form part of Edition 4 of the Patterns of Power series of books.  An archived copy of it is held at https://www.patternsofpower.org/edition04/545b.htm.