Feminist Aspie

A Law Student’s Guide To Free Speech (and what it isn’t)

on February 3, 2017

Here are some of the main sources of the basic human right to freedom of expression:

Freedom of expression is formulated slightly differently in each of those documents so I’d encourage having a look for yourself, but basically, it means everyone has the right to hold and express opinions without interference from the state. This interference might include:

Freedom of expression means you are free to express your views in general, but it does not give you a right to specific private platforms or audiences. If I invited you into my room and you started yelling abuse at me, I could kick you out without violating your freedom of expression – you remain free to yell abuse everywhere else. Indeed, if I invited you into my room and you do nothing wrong but then I have to go to class, I could kick you out and end the conversation with me without violating your freedom of expression – you remain free to express yourself to everyone else. In fact, I don’t HAVE to invite you in at all – you can still hold and express opinions, you just have to do it outside or somewhere else. The same principle would apply if my space was virtual and my name was Twitter.

Here are some other things free speech does not include:

These are privileges; the majority of us won’t ever receive these privileges, but that doesn’t mean we’ve all lost our rights to free speech!

As noted above, the right to freedom of expression protects against interference from the state – it cannot be violated by private parties. Having said that, it’s true that some private actions might impede a person’s ability to express themselves freely even though this cannot amount to a legal violation of freedom of expression, for example:

Neither of those violate the right to freedom of expression (although they may violate other laws), but you could certainly argue they go against the general spirit of why freedom of speech is so important.

Which begs the question – why is freedom of speech so important? There are various reasons for this. Firstly, there’s the importance of self-expression for developing autonomy and self-fulfilment (although it’s probably worth mentioning at this point that media corporations are not human beings developing autonomy and self-fulfilment). Then there’s the argument based around democracy – in a democratic society, we should be able to hear a wide range of views in order to evaluate them ourselves as opposed to, say, far-right white men shouting everyone else down and creating an atmosphere hostile to other voices.

This is where those restrictions I mentioned earlier come in – at least at a UN and European level, a proportionate, legal restriction on freedom of speech is permitted where this is  necessary for a specific list of aims – both the ICCPR and ECHR include the rights of others in this list. A common example of a situation where this balancing is needed is the tension between freedom of the media and the right to privacy of the individual they are reporting on. However, some speech can also reinforce or increase existing damage to the rights of others; for example, trans people are already at high risk of sometimes fatal violence and are frequently denied healthcare, and high-profile transphobic speech (such as this high-profile transphobic speech…) perpetuates the belief that these human rights violations are acceptable. So transphobes may have a right to express their hatred, but this has to be balanced against the rights of trans people to, in many cases, literally continue to exist. I don’t imagine freedom of expression would prevail there.

 

Basically: All free speech really means is that an opinion is legally allowed to exist without state interference. And if the best defence of an opinion you can think of is “it’s legally allowed to exist”, perhaps it’s time to start looking around for some better opinions.

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