Freedom of Expression/Limitations - Restrictions/Country exceptions

What are the typical exceptions or limitations placed on this right?

The following country-specific descriptions are from a 2019 US Government Report.

Argentina: Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals.

Canada: The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections.

China: China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. France: The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests.

Germany: German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.

Japan: The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful.

Netherlands: The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not.

New Zealand: New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.”

Sweden: Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. America places these restrictions on speech much less frequently, or not at all.

Hate Speech: Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.

Blasphemy: About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws).

Political Content: Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.”

Public Deliberations: It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. Proportionality Analysis: Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.

References:

US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/

RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul

Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action

Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/

Island School District v. Pico: https://www.oyez.org/cases/1981/80-2043

Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television

Article on German Bill: https://www.dw.com/en/germanys-government-approves-hate-speech-bill/a-52433689

Article on EU hate speech: https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Sp eech

Blasphemy internationally: https://www.uscirf.gov/reports-briefs/special-reports/respecting-rights-measuring-the-world-s-bl asphemy-laws

Blasphemy in Italy: https://end-blasphemy-laws.org/countries/europe/italy/

US Government Report on Free Expression Abroad (info on China, for example): https://fas.org/irp/eprint/lloc-limits.pdf