A QUESTION OF FREEDOM OF SPEECH

I have been musing today on the matter of freedom of thought. There are some fundamental constitutional issues in the United Kingdom, the United States, Russia, and a number of other countries throughout the world.

 

In the United States, the issue of free speech is enshrined in the First Amendment of the Constitution of the United States. There have been a number of cases decided by the Supreme Court of the United States which has pronounced on the matter of what constitutes free speech.

 

In the United Kingdom, although it appears to be taken for granted that Freedom of Speech is part of the common law of the land, it is not so clear cut.

 

“The European Convention on Human Rights was incorporated into the national law of the United Kingdom by the Human Rights Act 1998. Article 10 of the European Convention on Human Rights provides for freedom of expression and grants individuals the right to hold opinions, and to receive and share ideas, without state interference.  It specifically includes politics and matters of public interest:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Freedom of expression is a qualified right, which means that it may be restricted in certain circumstances provided it is prescribed by law and necessary in a democratic society to protect a legitimate aim.  Article 10(2) specifies as follows:

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, and for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has determined that whether the restriction on freedom of expression is necessary “requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate.”

So it is only since the implementation of the Human Rights Act of 1998 that a qualified freedom of speech is protected by statute.

There are matters at present, in the United States, which need greater clarification. The matter of free speech can appear to be a murky concept, given the outrageous behaviour of Mr Trump and his followers. To continue to promote the fiction that the election of 2020 was fraudulent and stolen from Mr. Trump is problematic.

 

In a case brought before the Supreme Court, United States v. Schwimmer. 279 U.S. 644 (1929).

Rosika Schwimmer 

A founder of the Women’s International League for Peace and Freedom

Rosika Schwimmer was a pacifist who would not take the oath of allegiance to become a naturalized citizen. She was born in Hungary and while in the United States delivering a lecture, she decided that she wanted to become a US citizen. When asked if she would be willing to "take up arms in defence of her country" she responded in the negative. She stated that she believed in the democratic ideal, but she asserted that she was an uncompromising pacifist. "My cosmic consciousness of belonging to the human family is shared by all those who believe that all human beings are the children of God."

The Court, not surprisingly for the time,  held in a 6–3 decision that citizenship should be denied.

 

Oliver Wendell Holmes

Justice Oliver Wendell Holmes wrote, in a dissenting opinion, that:

“Surely it cannot show lack of attachment to the principles of the Constitution that she thinks that it can be improved. I suppose that most intelligent people think that it might be.

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.

I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.”

 

 

In the matter of Donald Trump, he has been banned from Facebook and Instagram because of his promoting the ‘big lie’ about the election of President Biden. The ‘big lie’ is believed by the majority of registered Republicans in the United States. They, in turn, refer to the election results as ‘The Big Lie”  in that they say it was a fraud. The majority of United States citizens refer to the claim itself as ‘The Big Lie”. So in effect whose big lie do you believe and should it be prohibited from being promoted?

 

One would suppose that to establish the truth of a statement of fact, that there would be some indisputable evidence to support it. In the case of the big lie, there is no evidence. It is purely a matter of conjecture and belief. It is a thought. I refer you to Mr. Holmes’ remarks.

“...if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

 

In addition, we have the phrase, attributed to Voltaire, although perhaps it was one of his biographers:

            “I disapprove of what you say, but I will defend to the death your right to say it.”

 

The question then: is what is being said mere opinion or expression of belief, or does it go beyond that and become something more sinister? I refer you again to the qualifications contained in the European Convention on Human Rights:

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, and for maintaining the authority and impartiality of the judiciary.

 

Expression of thought carries with it duties and responsibilities. In a democratic society, if such opinion is contrary to the protection of citizens from disorder or crime, or protection of health or morals, or indeed, promotes division or violence, then that can no longer be viewed as simple speech but moves into the realms of propaganda and incitement to injure and destabilise the democratic process.

 

Censorship of any description is a difficult process, difficult to accept, and when dealing with dissent, there may be a fine line between mere words or calls for action and incitement to violence and insurrection.

 

‘Don’t vote for that guy’ is very different for “Stop them from voting for that guy”.

 

Over reacting to situations can sometimes be democratically counterproductive no matter who is speaking or acting out.  Rushing to judgement and pronouncing opinion has done immeasurable damage to human relations and encouraged bigotry and prejudice. Words spoken by our supposed leaders, oblivious to duty and responsibility, can cause reactions. One only needs to see the instances of attacks on Muslims and Asians in the United States to realise the harm, so called, free speech can engender. In certain situations, it is no longer a question of accepting the thought that we hate, but of supressing the thoughts that humanity claims to hate.

Some democratic societies have criminalised what is referred to as hate speech. Is it not time to listen with greater care and attention? Too much rhetoric masquerades as free speech under the cloak of the Human Rights Act and the First Amendment. It requires judicious consideration to stop it, which I suppose is a pressing social need.

 

I would rather denounce and deny the bigot, than die for his/her right to speak poison.

 

I hope that view is proportionate enough. It goes with a duty of care to do no harm and prevent the doing of harm. As regards the law, here is another quote from Oliver Holmes:

 

“We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.’

 

He wrote those words in 1897. You will note that fifty thousand dollars in 1897 was the equivalent of about one and a half million today. I suppose that might make some happy.