Right/Freedom of Expression/Legal Codification

Freedom of Expression

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is this right enshrined in international and regional human rights treaties? 🖉 edit

Multiple human rights regimes at both international and regional levels enshrine the universal freedom of expression in their frameworks, in accordance with the other fundamental values that these documents uphold. Although in international documents this freedom relates mostly to the unabridged ability of individuals to express their thoughts and opinions, it also protects media and press institutions that disseminate news and information throughout societies. For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law. In the context of international human rights regimes, freedom of expression is guaranteed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In both documents, freedom of expression is found under Article 19. In the UDHR, the right is listed as such: “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.” (UN, 2014) Article 19 of the ICCPR is worded very similarly but includes greater specificity, as it explicitly lays out protected ways to consume and impart information, including “...orally, in writing or in print, in the form of art, or through any other media of [one’s] choice.” (OHCHR, 2014) Regional human rights regimes also enshrine freedom of expression in a similar manner. The Organization of American States’ (OAS) Declaration of Principles on Freedom of Expression is composed of 13 articles that lay out protections of the freedom of expression and nuances of those protections in various contexts, including accessing information, censorship, communication freedoms, and privacy aspects. The American Declaration on the Rights and Duties of Man includes the freedom of expression in Article 4, with similar wording to Article 19 of the UDHR and the ICCPR. The African Charter on Human and Peoples’ Rights protects the right to “receive information,” and the right to “express and disseminate [one’s] opinions within the law.” (AU, 1986) This right is also established in the American Convention on Human Rights in Article 13 and is expanded by Article 14. Article 10 of the European Convention on Human Rights consists of two sections, the first echoing the wording of the UDHR and ICCPR, as well.

References:

American Declaration of the Rights and Duties of Man. Basic Documents - American Declaration. (n.d.). https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm.

European Convention on Human Rights. https://www.echr.coe.int/. (n.d.). https://www.echr.coe.int/documents/convention_eng.pdf.

International Covenant on Civil and Political Rights. OHCHR. (n.d.). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

PLC, A. M. B. F. T. (n.d.). African Commission on Human and Peoples' Rights. African Commission on Human and Peoples' Rights Legal instruments. https://www.achpr.org/legalinstruments/detail?id=49.

Organization of American States. Declaration of Principles on Freedom of Expression. http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26. 2021.

United Nations. (n.d.). Universal Declaration of Human Rights. United Nations. https://www.un.org/en/about-us/universal-declaration-of-human-rights.

Is it contained in the US Constitution? 🖉 edit

The right to free expression is not stated explicitly in the United States constitution, though it is universally accepted as covered by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.” The rights to free speech, press, assembly, and petition are generally viewed are elements of the right to free expression in the USA.

Has it been interpreted as being implicit in the US Constitution? 🖉 edit

Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution.

Are there any exceptions in American law to this right? 🖉 edit

Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Additionally, there is a legal exception for “fighting words”. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. Lastly, commercial speech may be regulated in order to protect consumers. In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, the Court described a four-part test for determining whether or not the government could limit commercial speech: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.

References:

Schenck v. United States, 249 U.S. 48 (1919): https://supreme.justia.com/cases/federal/us/249/47/

Brandenburg v. Ohio, 395 U.S. 444 (1969): https://supreme.justia.com/cases/federal/us/395/444/

Chaplinsky v. New Hampshire, 315 U.S. 572; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942): https://supreme.justia.com/cases/federal/us/315/568/

Miller v. California, 413 U.S. 37 (1973): https://supreme.justia.com/cases/federal/us/413/15/

New York Times Company v. Sullivan, 376 US 254 (1964): https://supreme.justia.com/cases/federal/us/376/254/

Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 US 566 (1980): https://supreme.justia.com/cases/federal/us/447/557/

Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/wex/defamation#:~:text=Defamation%20is%20a%20statement%20that,for%20defamation%20and%20potential%20damages.

Is this right protected in the Constitutions of most countries today? 🖉 edit

The right to free expression, expressed in terms of freedom of speech, is “formally granted by the laws of most nations” (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center in 2015 demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies.

References:

Pew Research Center: “Global Support for Principle of Free Expression, but Opposition to Some Forms of Speech,” November 8, 2015: https://www.pewresearch.org/global/2015/11/18/global-support-for-principle-of-free-expression-but-opposition-to-some-forms-of-speech/ (Accessed November 9, 2022

World Population Review: https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech (Accessed November 9, 2022)